CHAPTER 45-01 General Principles [Repealed]

[Repealed by S.L. 1959, ch. 326]

CHAPTER 45-02 General Partnership [Repealed]

[Repealed by S.L. 1959, ch. 326]

CHAPTER 45-03 Special Partnership [Repealed]

[Repealed by S.L. 1959, ch. 326]

CHAPTER 45-04 Actions By and Against Partnerships [Repealed]

[Repealed by S.L. 1959, ch. 326]

CHAPTER 45-05 Partnerships Generally [Repealed]

[Repealed by S.L. 1995, ch. 430, § 12]

CHAPTER 45-06 Relations of Partners to Others [Repealed]

[Repealed by S.L. 1995, ch. 430, § 12]

CHAPTER 45-07 Relations of Partners to One Another [Repealed]

[Repealed by S.L. 1995, ch. 430, § 12]

CHAPTER 45-08 Property Rights of a Partner [Repealed]

[Repealed by S.L. 1995, ch. 430, § 12]

CHAPTER 45-09 Dissolution and Winding Up [Repealed]

[Repealed by S.L. 1995, ch. 430, § 12]

CHAPTER 45-10 Uniform Limited Partnership Act [Repealed]

[Repealed by S.L. 1985, ch. 504, § 65]

CHAPTER 45-10.1 Uniform Limited Partnership Act [Repealed]

[Repealed by S.L. 2005, ch. 384, § 19]

CHAPTER 45-10.2 Uniform Limited Partnership Act

45-10.2-01. (101) Citation.

This chapter may be cited as the North Dakota Uniform Limited Partnership Act (2001).

Source:

S.L. 2005, ch. 384, § 6.

Collateral References.

Conflict of laws as to partnership matters, 29 A.L.R.2d 295.

Liability for false information in certificate of limited partnership, under Uniform Limited Partnership Act § 6, 34 A.L.R.2d 1454.

Partner’s breach of fiduciary duty to copartner on sale of partnership interest to another partner, 4 A.L.R.4th 1122.

Limited partnership: sufficiency of procedure for designating or admitting additional general partner, 6 A.L.R.4th 1277.

Derivative liability of partner for punitive damages for wrongful act of copartner, 14 A.L.R.4th 1335.

Inability of partnership to operate at profit as justification for court-ordered dissolution, 20 A.L.R.4th 122.

Right of limited partner to maintain derivative action on behalf of partnership, 26 A.L.R.4th 264.

Civil liability of one partner to another or to the partnership based on partner’s personal purchase of partnership property during existence of partnership, 37 A.L.R.4th 494.

Liability of limited partner arising from taking part in control of business under uniform limited partnership act, 79 A.L.R.4th 427.

45-10.2-02. (102) Definitions.

For the purposes of this chapter, unless the context otherwise requires:

  1. “Address” means:
    1. In the case of a registered office or principal executive office, the mailing address, including the zip code, of the actual office location which may not be only a post-office box; and
    2. In all other cases, the mailing address, including the zip code.
  2. “Authenticated electronic communication” means:
    1. That the electronic communication is delivered:
      1. To the principal place of business of the limited partnership; or
      2. To a general partner or agent of the limited partnership authorized by the limited partnership to receive the electronic communication; and
    2. That the electronic communication sets forth information from which the limited partnership can reasonably conclude that the electronic communication was sent by the purported sender.
  3. “Business” includes every trade, occupation, activity, and profession.
  4. “Certificate of limited partnership” means the certificate referred to in section 45-10.2-23 and the certificate as amended or restated.
  5. “Constituent limited partnership” means a constituent organization that is a limited partnership.
  6. “Constituent organization” means an organization that is party to a merger.
  7. “Contribution”, except in the phrase “right of contribution”, means any benefit provided by a person to a limited partnership:
    1. In order to become a partner; or
    2. In the capacity of the person as a partner.
  8. “Converted organization” means the organization into which a converting organization converts pursuant to sections 45-10.2-94 through 45-10.2-99.
  9. “Converting limited partnership” means a converting organization that is a limited partnership.
  10. “Converting organization” means an organization that converts into another organization pursuant to section 45-10.2-94.
  11. “Debtor in bankruptcy” means a person that is the subject of:
    1. An order of relief under title 11 of the United States Code or a comparable order under a successor statute of general application; or
    2. A comparable order under federal, state, or foreign law governing insolvency.
  12. “Distribution” means a transfer of money or other property from a limited partnership to a partner or to the transferee of the partner on account of a transferable interest owned by the transferee.
  13. “Domestic organization” means an organization created under the laws of this state.
  14. “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
  15. “Electronic communication” means any form of communication not directly involving the physical transmission of paper:
    1. That creates a record that may be retained, retrieved, and reviewed by a recipient of the communication; and
    2. That may be directly reproduced in paper form by the recipient through an automated process.
  16. “Electronic record” means a record created, generated, sent, communicated, received, or stored by electronic means.
  17. “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and signed or adopted by a person with the intent to sign the record.
  18. “Filed with the secretary of state” means except as otherwise permitted by law or rule:
    1. That a record meeting the applicable requirements of this chapter together with the fees provided in section 45-10.2-109 was delivered or communicated to the secretary of state by a method or medium of communication acceptable by the secretary of state and was determined by the secretary of state to conform to law.
    2. That the secretary of state did then:
      1. Record the actual date on which the record was filed, and if different, the effective date of filing; and
      2. Record the record in the office of the secretary of state.
  19. “Foreign limited liability limited partnership” means a partnership formed by two or more persons under the laws of a jurisdiction other than this state:
    1. Which is required by those laws to have one or more general partners and one or more limited partners;
    2. Whose general partners have limited liability for the obligations of the foreign limited liability limited partnership under provisions similar to chapter 45-23;
    3. For a purpose for which a limited liability limited partnership may be organized under chapter 45-23; and
    4. Which is in good standing in its jurisdiction of origin.
  20. “Foreign limited partnership” means a partnership formed by two or more persons under laws of a jurisdiction other than this state:
    1. Which is required by those laws to have one or more general partners and one or more limited partners;
    2. Whose general partners have personal liability for the obligations of the foreign limited partnership under provisions similar to this chapter;
    3. For a purpose for which a limited partnership may be organized under this chapter; and
    4. Which is in good standing in its jurisdiction of origin.
  21. “Foreign organization” means an organization created under laws of a jurisdiction other than this state.
  22. “General partner” means:
    1. With respect to a limited partnership, a person:
      1. That becomes a general partner under section 45-10.2-37 and has not become dissociated as a general partner under section 45-10.2-57; or
      2. That was a general partner in a limited partnership when the limited partnership became subject to this chapter under section 45-10.2-03 and has not become dissociated as a general partner under section 45-10.2-57; and
    2. With respect to a foreign limited partnership, a person that has rights, powers, and obligations similar to those of a general partner in a limited partnership.
  23. “Governing statute” means:
    1. With respect to a domestic organization, the following chapters of this code which govern the internal affairs of the organization:
      1. If a corporation, chapter 10-19.1;
      2. If a limited liability company, chapter 10-32.1;
      3. If a general partnership, chapters 45-12 through 45-21;
      4. If a limited partnership, this chapter;
      5. If a limited liability partnership, chapter 45-22; and
      6. If a limited liability limited partnership, chapter 45-23; and
    2. With respect to a foreign organization, the laws of the jurisdiction under which the organization is created and under which the internal affairs of the organization are governed.
  24. “Limited liability limited partnership”, except in the phrase “foreign limited liability limited partnership”, means a partnership that is formed by two or more persons and which has one or more general partners and one or more limited partners:
    1. Which is formed under chapter 45-23; or
    2. Which elects to become subject to chapter 45-23.
  25. “Limited partner” means:
    1. With respect to a limited partnership, a person that:
      1. Becomes a limited partner under section 45-10.2-31 and has not become dissociated as a limited partner under section 45-10.2-55; or
      2. Was a limited partner in a limited partnership when the limited partnership became subject to this chapter under section 45-10.2-03 and has not become dissociated as a limited partner under section 45-10.2-55; and
    2. With respect to a foreign limited partnership, a person that has rights, powers, and obligations similar to those of a limited partner in a limited partnership.
  26. “Limited partnership”, except in the phrases “foreign limited partnership” and “foreign limited liability limited partnership” means a partnership that is formed by two or more persons and which has one or more general partners and one or more limited partners:
    1. Which is formed under this chapter; or
    2. Which elects to become subject to this chapter under section 45-10.2-03.
  27. “Notice”:
    1. Is given to a limited partnership:
      1. When in writing and mailed or delivered to a general partner at the registered office or principal executive office of the limited partnership; or
      2. When given by a form of electronic communication consented to by a general partner of the limited partnership to which the notice is given if by:
        1. Facsimile communication, when directed to a telephone number at which a general partner of the limited partnership has consented to receive notice;
        2. Electronic mail, when directed to an electronic mail address at which a general partner of the limited partnership has consented to receive notice;
        3. Posting on an electronic network on which a general partner of the limited partnership has consented to receive notice, together with separate notice to the limited partnership of the specific posting, upon the later of:
          1. The posting; or
          2. The giving of the separate notice; or
        4. Any other form of electronic communication by which a general partner of the limited partnership has consented to receive notice, when directed to the limited partnership.
    2. Is given to a partner of the limited partnership:
      1. When in writing and mailed or delivered to the partner at the registered office or principal executive office of the limited partnership; or
      2. When given by a form of electronic communication consented to by the partner to which the notice is given if by:
        1. Facsimile communication, when directed to a telephone number at which the partner has consented to receive notice;
        2. Electronic mail, when directed to an electronic mail address at which the partner has consented to receive notice;
        3. Posting on an electronic network on which the partner has consented to receive notice, together with separate notice to the partner of the specific posting, upon the later of:
          1. The posting; or
          2. The giving of the separate notice; or
        4. Any other form of electronic communication by which the partner has consented to receive notice, when directed to the partner.
    3. Is given in all other cases:
      1. When mailed to the person at an address designated by the person or at the last-known address of the person;
      2. When deposited with a nationally recognized overnight delivery service for overnight delivery or, if overnight delivery to the person is not available, for delivery as promptly as practicable, to the person at an address designated by the person or at the last-known address of the person;
      3. When handed to the person;
      4. When left at the office of the person with a clerk or other person in charge of the office, or:
        1. If there is no one in charge, when left in a conspicuous place in the office; or
        2. If the office is closed or the person to be notified has no office, when left at the dwelling house or usual place of abode of the person with some person of suitable age and discretion then residing there;
      5. When given by a form of electronic communication consented to by the person to whom the notice is given if by:
        1. Facsimile communication, when directed to a telephone number at which the person has consented to receive notice;
        2. Electronic mail, when directed to an electronic mail address at which the person has consented to receive notice;
        3. Posting on an electronic network on which the person has consented to receive notice, together with separate notice to the person of the specific posting, upon the later of:
          1. The posting; or
          2. The giving of the separate notice; or
        4. Any other form of electronic communication, by which the person has consented to receive notice, when directed to the person; or
      6. When the method is fair and reasonable when all circumstances are considered.
    4. Is given when deposited in the United States mail with sufficient postage affixed.
    5. Is given by deposit for delivery when deposited for delivery as provided in paragraph 2 of subdivision c, after having made sufficient arrangements for payment by the sender.
    6. Is deemed received when it is given.
  28. “Organization”:
    1. Means, whether domestic or foreign, a corporation, limited liability company, general partnership, limited partnership, limited liability partnership, limited liability limited partnership, and any other person subject to a governing statute; but
    2. Excludes:
      1. Any nonprofit corporation, whether a domestic nonprofit corporation which is incorporated under chapter 10-33 or a foreign nonprofit corporation which is incorporated under the laws of another jurisdiction; or
      2. Any nonprofit limited liability company, whether a domestic nonprofit limited liability company which is organized under chapter 10-36 or a foreign nonprofit limited liability company which is organized in another jurisdiction.
  29. “Organizational records” means:
    1. For a domestic or foreign general partnership, its partnership agreement;
    2. For a limited partnership or foreign limited partnership, its certificate of limited partnership and partnership agreement;
    3. For a domestic or foreign limited liability company, its articles of organization, bylaws or operating agreement, and any member-control agreement, or comparable records as provided in its governing statute;
    4. For a domestic or foreign corporation for profit, its articles of incorporation, bylaws, and other agreements among its shareholders which are authorized by its governing statute, or comparable records as provided in its governing statute; and
    5. For any other organization, the basic records that create the organization and determine its internal governance and the relations among the persons that own it, have an ownership interest in it, or are members of it.
  30. “Ownership interests” means for an organization which is:
    1. A corporation, its shares;
    2. A limited liability company, its membership interests;
    3. A limited partnership, its partnership interests;
    4. A general partnership, its partnership interests;
    5. A limited liability partnership, its partnership interests; or
    6. A limited liability limited partnership, its partnership interests.
  31. “Partner” means a general or limited partner.
  32. “Partnership agreement”:
    1. Means the agreement of the partners, whether oral, implied, in a record, or in any combination, concerning the limited partnership; and
    2. Includes the agreement as amended.
  33. “Partnership interest” means the transferable interest of a partner.
  34. “Person dissociated as a general partner” means a person dissociated as a general partner of a limited partnership.
  35. “Personal liability” means personal liability for a debt, liability, or other obligation of an organization which is imposed on a person that co-owns, has an ownership interest in, or is a member of the organization:
    1. By the governing statute of an organization solely by reason of the person co-owning, having an ownership interest in, or being a member of the organization; or
    2. By the organizational records of an organization under a provision of the governing statute of an organization authorizing those records to make one or more specified persons liable for all or specified debts, liabilities, and other obligations of the organization solely by reason of the person or persons co-owning, having an ownership interest in, or being a member of the organization.
  36. “Principal executive office” means:
    1. An office from which the limited partnership conducts business; or
    2. If the limited partnership has no office from which it conducts business, then the registered office of the limited partnership.
  37. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
  38. “Registered office” means the place in this state designated in the certificate of limited partnership or in the certificate of authority of a foreign limited partnership as the registered office.
  39. “Required information” means the information that a limited partnership is required to maintain under section 45-10.2-13.
  40. “Signed” means:
    1. That the signature of a person, which may be a facsimile affixed, engraved, printed, placed, stamped with indelible ink, transmitted by facsimile or electronically, or in any other manner reproduced on the record, is placed on a record with the present intention to authenticate that record; and
    2. With respect to a record required by this chapter to be filed with the secretary of state that:
      1. The record is signed by a person authorized to sign the record by this chapter, by the partnership agreement, or by a resolution approved by the affirmative vote of the required proportion or number of partners; and
      2. The signature and the record are communicated by a method or medium of communication acceptable by the secretary of state.
  41. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
  42. “Surviving organization” means an organization into which one or more other organizations are merged and which:
    1. May pre-exist the merger; or
    2. May be created by the merger.
  43. “Transfer” includes an assignment, conveyance, deed, bill of sale, lease, mortgage, security interest, encumbrance, gift, and transfer by operation of law.
  44. “Transferable interest” means the right of a partner to receive distributions.
  45. “Transferee” means, except in section 45-10.2-45, a person to which all or part of a transferable interest has been transferred, whether or not the transferor is a partner.
  46. “Vote” includes authorization by written action.
  47. “Written action” means:
    1. A written record signed by all of the persons required to take the action; and
    2. The counterparts of a written record signed by any of the persons taking the action described.
      1. Each counterpart constitutes the action of the person signing; and
      2. All the counterparts, taken together, constitute one written action by all of the persons signing the counterparts.

Source:

S.L. 2005, ch. 384, § 6; 2007, ch. 101, § 68; 2007, ch. 354, § 24; 2009, ch. 106, § 60; 2015, ch. 87, § 26, effective July 1, 2015.

45-10.2-03. (1206) Application to existing relationships.

  1. After June 30, 2005, no person may use chapter 45-10.1 to form an entity.
  2. Before January 1, 2006, this chapter governs only:
    1. A limited partnership formed after June 30, 2005; and
    2. Except as otherwise provided in subsection 4, a limited partnership formed under chapter 45-10.1 which elects, in the manner provided in its partnership agreement or by law for amending the partnership agreement, to be subject to this chapter.
  3. Except as otherwise provided in subsection 4, on and after January 1, 2006, this chapter governs:
    1. Any limited partnership formed under chapter 45-10.1 which has not previously elected to be governed by this chapter and is still in existence on January 1, 2006; and
    2. All limited partnerships, including each limited partnership formed under chapter 45-10.1 which has previously elected to become governed by this chapter.
  4. With respect to a limited partnership formed before July 1, 2005, the following rules apply except as the partners otherwise elect in the manner provided in the partnership agreement or by law for amending the partnership agreement:
    1. Subsection 3 of section 45-10.2-07 does not apply and the limited partnership has whatever duration it had under the law applicable immediately before the limited partnership became subject to this chapter;
    2. Sections 45-10.2-55 and 45-10.2-56 do not apply and a limited partner has the same right and power to dissociate from the limited partnership, with the same consequences, as existed immediately before the limited partnership became subject to this chapter;
    3. Subsection 4 of section 45-10.2-57 does not apply;
    4. Subsection 5 of section 45-10.2-57 does not apply and a court has the same power to expel a general partner as the court had immediately before the limited partnership became subject to this chapter; and
    5. Subsection 3 of section 45-10.2-66 does not apply and the connection between the dissociation of a person as a general partner and the dissolution of the limited partnership is the same as existed immediately before the limited partnership became subject to this chapter.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-04. (1207) Savings clause.

This chapter does not affect an action commenced, proceeding brought, or right accrued before this chapter takes effect.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-05. Legal recognition of electronic records and electronic signatures.

For purposes of this chapter:

  1. A record or signature may not be denied legal effect or enforceability solely because it is in electronic form;
  2. A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation;
  3. If a provision requires a record to be in writing, then an electronic record satisfies the requirement;
  4. If a provision requires a signature, then an electronic signature satisfies the requirement; and
  5. The provisions of this chapter relating to electronic records and electronic transactions do not limit or supersede any provision of chapter 9-16.

Source:

S.L. 2005, ch. 384, § 6.

Cross-References.

Electronic transactions, see N.D.C.C. ch. 9-16.

45-10.2-06. (103) Knowledge and notice.

  1. A person knows or has knowledge of a fact if the person has actual knowledge of it. A person does not know or have knowledge of a fact merely because the person has reason to know or have knowledge of the fact.
  2. A person has notice of a fact if the person:
    1. Knows of the fact;
    2. Has received notice of the fact as provided in subsection 27 of section 45-10.2-02;
    3. Has reason to know the fact exists from all of the facts known to the person at the time in question; or
    4. Has notice of it under subsection 3 or 4.
  3. A certificate of limited partnership on file in the office of the secretary of state is notice that the partnership is a limited partnership and the persons designated in the certificate as general partners are general partners. Except as otherwise provided in subsections 4 and 9, the certificate is not notice of any other fact.
  4. Subject to subsection 9, a person has notice of:
    1. The dissociation of another person as a general partner ninety days after the effective date of a filed amendment to the certificate of limited partnership which states that the other person has dissociated or ninety days after the effective date of a filed statement of dissociation pertaining to the other person, whichever occurs first;
    2. The dissolution of a limited partnership ninety days after the effective date of a filed amendment to the certificate of limited partnership stating that the limited partnership is dissolved;
    3. The termination of a limited partnership ninety days after the effective date of a filed statement of termination;
    4. The conversion of a limited partnership under sections 45-10.2-94 through 45-10.2-99 ninety days after the effective date of the filed articles of conversion; or
    5. A merger under sections 45-10.2-100 through 45-10.2-103 ninety days after the effective date of the filed articles of merger.
  5. A person notifies or gives a notification to another person by taking the steps provided in subsection 27 of section 45-10.2-02, whether or not the other person learns of it.
  6. A person receives a notification as provided in subsection 27 of section 45-10.2-02.
  7. Except as otherwise provided in subsection 8 and except as otherwise provided in subsection 27 of section 45-10.2-02, a person other than an individual knows, has notice, or receives a notification of a fact for purposes of a particular transaction when the individual conducting the transaction for the person knows, has notice, or receives a notification of the fact, or in any event when the fact would have been brought to the attention of the individual if the person had exercised reasonable diligence.
    1. A person other than an individual exercises reasonable diligence if it maintains reasonable routines for communicating significant information to the individual conducting the transaction for the person and there is reasonable compliance with the routines.
    2. Reasonable diligence does not require an individual acting for the person to communicate information unless the communication is part of the regular duties of the individual or the individual has reason to know of the transaction and that the transaction would be materially affected by the information.
  8. Knowledge, notice, or receipt of a notification of a fact relating to the limited partnership by a general partner is effective immediately as knowledge of, notice to, or receipt of a notification by the limited partnership, except in the case of a fraud on the limited partnership committed by or with the consent of the general partner. Knowledge, notice, or receipt of a notification of a fact relating to the limited partnership by a limited partner is not effective as knowledge by, notice to, or receipt of a notification by the limited partnership.
  9. Notice otherwise effective under subsection 4 does not affect the power of a person to transfer real property held in the name of a limited partnership unless at the time of transfer a certified copy of the relevant statement, amendment, or articles, as filed with the secretary of state, has been recorded in the office of the county recorder in the county in which the real property affected by the statement, amendment, or articles is located.
  10. With respect to notice given by a form of electronic communication:
    1. Consent by a partner to notice given by electronic communication may be given in writing or by authenticated electronic communication. The partnership is entitled to rely on any consent so given until revoked by the partner. However, no revocation affects the validity of any notice given before receipt by the partnership of revocation of the consent.
    2. An affidavit of a general partner or an authorized agent of the limited partnership, that the notice has been given by a form of electronic communication is, in the absence of fraud, prima facie evidence of the facts stated in the affidavit.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-06.1. Reservation of legislative right.

The legislative assembly reserves the right to amend or repeal the provisions of this chapter. A limited partnership formed under or governed by this chapter is subject to this reserved right.

Source:

S.L. 2007, ch. 101, § 69.

45-10.2-07. (104) Nature, purpose, and duration of entity.

  1. A limited partnership is an entity distinct from its partners.
  2. A limited partnership may be organized under this chapter for any lawful purpose except banking or insurance.
  3. A limited partnership has a perpetual duration unless otherwise provided in its certificate of limited partnership.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-08. (105) General powers.

A limited partnership has the powers to do all things necessary or convenient to carry on its activities, including the power to sue, be sued, and defend in its own name and to maintain an action against a partner for harm caused to the limited partnership by a breach of the partnership agreement or violation of a duty to the partnership.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-09. (106 and 107) Governing law.

  1. The law of this state governs relations among the partners of a limited partnership and between the partners and the limited partnership and the liability of partners as partners for an obligation of the limited partnership.
  2. Unless displaced by particular provision of this chapter, the principles of law and equity supplement this chapter.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-10. Limited partnership name. [Contingent effective date – See note]

  1. The name of each limited partnership as set forth in the certificate of limited partnership:
    1. Must be expressed in letters or characters used in the English language as those letters or characters appear in the American standard code for information interchange (ASCII) table.
    2. Must contain without abbreviation the words “limited partnership” or the abbreviation “L.P.” or “LP”, either of which abbreviations may be used interchangeably for all purposes authorized by this chapter, including real estate matters, contracts, and filings with the secretary of state.
    3. May contain the name of a partner.
    4. May not contain the word “corporation”, “company”, “incorporated”, “limited liability company”, “limited liability partnership”, “limited liability limited partnership”, or an abbreviation of these words.
    5. May not contain a word or phrase indicating or implying the limited partnership:
      1. Is organized for a purpose other than:
        1. A lawful purpose for which a limited partnership may be organized under this chapter; or
        2. For a purpose stated in its certificate of limited partnership; or
      2. May not be organized under this chapter.
    6. Must be distinguishable in the records of the secretary of state from:
      1. The name, whether foreign and authorized to do business in this state or domestic, unless there is filed with the certificate of limited partnership a record in compliance with subsection 3, of:
        1. Another limited partnership;
        2. A corporation;
        3. A limited liability company;
        4. A limited liability partnership; or
        5. A limited liability limited partnership;
      2. A name the right to which is, at the time of the filing of the certificate of limited partnership, reserved in the manner provided in section 10-19.1-14, 10-32.1-12, 10-33-11, 45-10.2-11, 45-13-04.2, or 45-22-05;
      3. A fictitious name registered in the manner provided in chapter 45-11;
      4. A trade name registered in the manner provided in chapter 47-25; or
      5. A trademark or service mark registered in the manner provided in chapter 47-22.
  2. The secretary of state shall determine whether a limited partnership name is distinguishable in the secretary of state’s records from another name for purposes of this chapter and may adopt rules reasonable or necessary for making these determinations.
  3. If the secretary of state determines a limited partnership name is indistinguishable in the secretary of state’s records from another name for purposes of this chapter, the limited partnership name may not be used unless there is filed with the articles:
    1. The written consent of the holder of the registered trade name or the holder of the rights to the name to which the proposed name has been determined to be indistinguishable; or
    2. A certified copy of a judgment of a court in this state establishing the prior right of the applicant to the use of the name in this state.
  4. Subsection 3 does not affect the right of a limited partnership existing on the effective date of this chapter, or a foreign limited partnership authorized to do business in this state on that date, to continue the use of its name.
  5. This section and section 45-10.2-11 do not:
    1. Abrogate or limit:
      1. The law of unfair competition or unfair practices;
      2. Chapter 47-25;
      3. The laws of the United States with respect to the right to acquire and protect copyrights, trade names, trademarks, service names, and service marks; or
      4. Any other right to the exclusive use of names or symbols; or
    2. Derogate the common law or the principles of equity.
  6. A limited partnership that is the surviving organization in a merger with one or more organizations, or that acquires by sale, lease, or other disposition to or exchange with an organization all or substantially all of the assets of another organization including its name, may include in its name, subject to the requirements of subsection 1, the name of any of the organizations, if the other organization whose name is sought to be used:
    1. Was incorporated, organized, formed, or registered under the laws of this state;
    2. Is authorized to transact business or conduct activities in this state;
    3. Holds a reserved name in the manner provided in section 10-19.1-14, 10-32.1-12, 10-33-11, 45-10.2-11, 45-13-04.2, or 45-22-05;
    4. Holds a fictitious name registered in the manner provided in chapter 45-11;
    5. Holds a trade name registered in the manner provided in chapter 47-25; or
    6. Holds a trademark or service mark registered in the manner provided in chapter 47-22.
  7. The use of a name by a limited partnership in violation of this section does not affect or vitiate its limited partnership existence. However, a court in this state may, upon application of the state or of an interested or affected person, enjoin the limited partnership from doing business under a name assumed in violation of this section, although its certificate of limited partnership may have been filed with the secretary of state.
  8. A limited partnership whose period of existence has expired or that is involuntarily dissolved by the secretary of state as provided in section 45-10.2-108 or 45-10.2-108.1 may reacquire the right to use that name by refiling a certificate of limited partnership pursuant to section 45-10.2-23 unless the name has been adopted for use or reserved by another person, in which case the filing will be rejected unless the filing is accompanied by a written consent or judgment pursuant to subsection 3. A limited partnership that cannot reacquire the use of its limited partnership name shall adopt a new limited partnership name that complies with this section by refiling a certificate of limited partnership as provided in section 45-10.2-23; by amending its certificate of limited partnership as provided in section 45-10.2-24; or by reinstating the limited partnership pursuant to section 45-10.2-108. If the new limited partnership name has been adopted for use or reserved by another person, the filing will be rejected unless the filing is accompanied by a written consent or judgment as provided in subsection 3.
  9. Subject to section 45-10.2-78, this section applies to a foreign limited partnership transacting business in this state, having a certificate of authority to transact business in this state, or applying for a certificate of authority.
  10. A limited partnership filing its certificate of limited partnership with an effective date later than the date of filing as provided in subsection 3 of section 45-10.2-27 shall maintain the right to the name until the effective date.

Source:

S.L. 2005, ch. 384, § 6; 2011, ch. 87, § 63; contingently amended by 2015, ch. 87, §§ 27, 28, effective July 1, 2015; contingently amended by 2019, ch. 93, § 9.

Note.

This section is effective upon receipt by the legislative council of the certification by the secretary of state attesting that all necessary administrative rules and information technology components and systems are ready for implementation of this Act.

45-10.2-11. Reserved name.

  1. The exclusive right to the use of a limited partnership name otherwise permitted by section 45-10.2-10 may be reserved by any person.
  2. The reservation must be made by filing with the secretary of state a request that the name be reserved.
    1. If the name is available for use by the applicant, the secretary of state shall reserve the name for the exclusive use of the applicant for a period of twelve months.
    2. The reservation may be renewed for successive twelve-month periods.
  3. The right to the exclusive use of a limited partnership name reserved pursuant to this section may be transferred to another person by or on behalf of the applicant for whom the name was reserved by filing in the office of the secretary of state a notice of transfer, and specifying the name and address of the transferee.
  4. The right to the exclusive use of a limited partnership name reserved pursuant to this section may be canceled by or on behalf of the applicant for whom the name was reserved by filing with the secretary of state a notice of cancellation.
  5. The secretary of state may destroy all reserved name requests and the index thereof one year after expiration.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-12. (110) Effect of partnership agreement and nonwaivable provisions.

  1. Except as otherwise provided in subsection 2, the partnership agreement governs relations among the partners and between the partners and the partnership. To the extent the partnership agreement does not otherwise provide, this chapter governs relations among the partners and between the partners and the partnership.
  2. A partnership agreement may not:
    1. Vary the power of a limited partnership under section 45-10.2-08 to sue, be sued, and defend in its own name;
    2. Vary the law applicable to a limited partnership under section 45-10.2-09;
    3. Vary the requirements of section 45-10.2-25;
    4. Vary the information required under section 45-10.2-13 or unreasonably restrict the right to information under section 45-10.2-34 or 45-10.2-43, but the partnership agreement may impose reasonable restrictions on the availability and use of information obtained under those sections and may define appropriate remedies, including liquidated damages, for a breach of any reasonable restrictions on use;
    5. Eliminate the duty of loyalty under section 45-10.2-44, but the partnership agreement may:
      1. Identify specific types or categories of activities that do not violate the duty of loyalty, if not manifestly unreasonable; and
      2. Specify the number or percentage of partners which may authorize or ratify, after full disclosure to all partners of all material facts, a specific act or transaction that otherwise would violate the duty of loyalty;
    6. Unreasonably reduce the duty of care under subsection 3 of section 45-10.2-44;
    7. Eliminate the obligation of good faith and fair dealing under subsection 2 of section 45-10.2-35 and subsection 4 of section 45-10.2-44, but the partnership agreement may prescribe the standards by which the performance of the obligation is to be measured, if the standards are not manifestly unreasonable;
    8. Vary the power of a person to dissociate as a general partner under subsection 1 of section 45-10.2-58 except to require that the notice under subsection 1 of section 45-10.2-57 be in a record;
    9. Vary the power of a court to decree dissolution in the circumstances specified in section 45-10.2-67;
    10. Vary the requirement to wind up the business of a partnership as specified in section 45-10.2-68;
    11. Unreasonably restrict the right to maintain an action under sections 45-10.2-89 through 45-10.2-93;
    12. Restrict the right of a partner under subsection 1 of section 45-10.2-104 to approve a conversion or merger;
    13. Restrict the right of a general partner under subsection 2 of section 45-10.2-104 to consent to an amendment to the certificate of limited partnership which converts the limited partnership to a limited liability limited partnership; or
    14. Restrict rights under this chapter of a person other than a partner or a transferee.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-13. (111) Required information.

A limited partnership shall maintain at its principal executive office the following information:

  1. A current list showing the full name and last-known street and mailing address of each partner, separately identifying the general partners, in alphabetical order, and the limited partners, in alphabetical order;
  2. A copy of the initial certificate of limited partnership and all amendments to and restatements of the certificate, together with signed copies of any powers of attorney under which any certificate, amendment, or restatement has been signed;
  3. A copy of any filed articles of conversion or merger;
  4. A copy of the federal, state, and local income tax returns and reports of a limited partnership, if any, for the three most recent years;
  5. A copy of any partnership agreement made in a record and any amendment made in a record to any partnership agreement;
  6. A copy of any financial statement of the limited partnership for the three most recent years;
  7. A copy of the three most recent annual reports delivered by the limited partnership to the secretary of state pursuant to section 45-10.2-108;
  8. A copy of any record made by the limited partnership during the past three years of any consent given by or vote taken of any partner pursuant to this chapter or the partnership agreement; and
  9. Unless contained in a partnership agreement made in a record, a record stating:
    1. The amount of cash, and a description and statement of the agreed value of the other benefits, contributed and agreed to be contributed by each partner;
    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. For any person that is both a general partner and a limited partner, a specification of what transferable interest the person owns in each capacity; and
    4. Any events upon the happening of which the limited partnership is to be dissolved and its activities wound up.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-14. (112) Business transactions of partner with partnership.

A partner may lend money to and transact other business with the limited partnership and has the same rights and obligations with respect to the loan or other transaction as a person that is not a partner.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-15. (113) Dual capacity.

A person may be both a general partner and a limited partner.

  1. A person that is both a general and limited partner has the rights, powers, duties, and obligations provided by this chapter and the partnership agreement in each of those capacities.
  2. When the person acts as a general partner, the person is subject to the obligations, duties, and restrictions under this chapter and the partnership agreement for general partners.
  3. When the person acts as a limited partner, the person is subject to the obligations, duties, and restrictions under this chapter and the partnership agreement for limited partners.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-16. Registration of general partner.

A general partner must be registered separately with the secretary of state at the time of filing a certificate of limited partnership or the application for certificate of authority of a foreign limited partnership whenever that general partner is either a domestic or foreign:

  1. Corporation;
  2. Limited liability company;
  3. Limited partnership;
  4. Limited liability partnership;
  5. Limited liability limited partnership;
  6. General partnership; or
  7. Any other organization that has a registration responsibility with the secretary of state.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-17. Registered office — Registered agent.

A limited partnership shall continuously maintain a registered agent in this state as provided by chapter 10-01.1, and if a noncommercial registered agent, the address of that noncommercial registered agent.

Source:

S.L. 2005, ch. 384, § 6; 2007, ch. 99, § 59.

45-10.2-18. Change of registered office or agent — Resignation of registered agent — Change of name or address of registered agent.

  1. A limited partnership may change its registered office, change its registered agent, or state a change in the name of the registered agent as provided in chapter 10-01.1.
  2. A registered agent of a limited partnership may resign as provided in chapter 10-01.1.

Source:

S.L. 2005, ch. 384, § 6; 2007, ch. 99, § 60.

45-10.2-19. Action without a meeting.

An action required or permitted to be taken or permitted to be taken at a meeting of the partners may be taken without a meeting by written action signed, or consented to by authenticated electronic communication, by all of the partners entitled to vote on that action.

  1. If the certificate of limited partnership or the partnership agreement so provides, any action may be taken by written action signed, or consented to by authenticated electronic communication, by the partners entitled to vote on the action who own voting power equal to the voting power that would be required to take the same action at a meeting of the partners at which all partners entitled to vote on the action were present. After the adoption of the initial certificate of limited partnership or the initial partnership agreement, an amendment to the certificate of limited partnership or to the partnership agreement to permit written action to be taken by less than all partners entitled to vote on an action requires the approval of all partners entitled to vote on the amendment.
    1. When written action is permitted to be taken by less than all partners entitled to vote on the action, all partners entitled to vote on the action must be notified immediately of its text and effective date.
    2. Failure to provide the notice does not invalidate the written action.
    3. A partner who does not sign or consent to the written action has no liability for the action or actions taken by the written actions.
  2. The written action is effective when it has been signed, or consented to by authenticated electronic communication, by the partners entitled to vote on the action, unless a different effective time is provided in the written action.
  3. When this chapter requires or permits a certificate concerning an action to be filed with the secretary of state, the general partner signing the certificate must so indicate if the action was taken under this section.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-20. Remote communications for partner meetings.

  1. This section must be construed and applied to:
    1. Facilitate remote communication consistent with other applicable law; and
    2. Be consistent with reasonable practices concerning remote communication and with the continued expansion of those practices.
  2. To the extent authorized in the certificate of limited partnership or the partnership agreement and determined by the general partners:
    1. A meeting of the partners may be held solely by any combination of means of remote communication through which the participants may participate in the meeting:
      1. If notice of the meeting is given to every holder of interests entitled to vote as would be required by the certificate of limited partnership or the partnership agreement for a meeting; and
      2. If the number of partnership interests held by the partners participating in the meeting would be sufficient to constitute a quorum at a meeting.
    2. A partner not physically present in person or by proxy at a meeting of partners may by means of remote communication participate in a meeting of partners held at a designated place.
  3. In any meeting of partners held solely by means of remote communication under subdivision a of subsection 2 or in any meeting of partners held at a designated place in which one or more partners participate by means of remote communication under subdivision b of subsection 2:
    1. The limited partnership shall implement reasonable measures to:
      1. Verify that each person deemed present and entitled to vote at the meeting by means of remote communication is a partner; and
      2. Provide each partner participating by means of remote communication with a reasonable opportunity to participate in the meeting, including an opportunity to:
        1. Read or hear the proceedings of the meeting substantially concurrently with those proceedings;
        2. If allowed by the procedures governing the meeting, have the remarks of a partner heard or read by other participants in the meeting substantially concurrently with the making of those remarks; and
        3. If otherwise entitled, vote on matters submitted to the partners.
    2. Participation in a meeting by this means constitutes presence at the meeting in person or by proxy if all of the requirements of section 45-10.2-21 are met.
  4. Any ballot, vote, authorization, or consent submitted by electronic communication under this chapter may be revoked by the partner submitting the ballot, vote, authorization, or consent so long as the revocation is received by a general partner of the limited partnership at or before the meeting or before an action without a meeting is effective as provided in section 45-10.2-19.
  5. A partner may waive notice of a meeting by means of authenticated electronic communication. Participation in a meeting by means of remote communication described in subdivisions a and b of subsection 2 is a waiver of notice of that meeting, except when the partner objects:
    1. At the beginning of the meeting to the transaction of business because the meeting is not lawfully called or convened; or
    2. Before a vote on an item of business because the item may not lawfully be considered at the meeting and does not participate in the consideration of the item at that meeting.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-21. Consent and proxies of partners.

  1. At or before the meeting for which the appointment is to be effective, a partner may cast or authorize the casting of a vote:
    1. By filing with a partner or agent authorized to tabulate votes a written appointment of a proxy which is signed by the partner.
    2. By remote communication or authenticated electronic communication to a partner or agent authorized to tabulate votes, whether or not accompanied by written instructions of the partner, of an appointment of a proxy.
      1. The remote communication or authenticated electronic communication must set forth or be submitted with information from which it can be determined that the appointment is authorized by the partner. If it is reasonably concluded that the remote communication or authenticated electronic communication is valid, then the inspectors of election or, if there are no inspectors, then the other persons making that determination of validity shall specify the information upon which they relied to make that determination.
      2. A proxy so appointed may vote on behalf of the partner, or otherwise participate, in a meeting by remote communication according to section 45-10.2-20 to the extent the partner appointing the proxy would have been entitled to participate by remote communication according to section 45-10.2-20 if the partner did not appoint the proxy.
    3. A copy, facsimile telecommunication, or other reproduction of the original writing or transmission may be substituted or used in lieu of the original writing or transmission for any purpose for which the original writing or transmission could be used if the copy, facsimile telecommunication, or other reproduction is a complete and legible reproduction of the entire original writing or transmission.
    4. An appointment of a proxy for partnership interests held jointly by two or more partners is valid if signed or consented to by authenticated electronic communication by any one of the partners, unless the limited partnership receives from any of those partners written notice or authenticated electronic communication either denying the authority of that person to appoint a proxy or appointing a different proxy.
  2. The appointment of a proxy is valid for eleven months, unless a longer period is expressly provided in the appointment. No appointment is irrevocable unless the appointment is coupled with an interest, including a security interest, in the partnership interests or in the limited partnership. A partner who revokes a proxy is not liable in any way for damages, restitution, or other claim.
  3. An appointment may be revoked at will, unless the appointment is coupled with an interest, in which case it may not be revoked except in accordance with the terms of an agreement, if any, between the parties to the appointment. Appointment of a proxy is revoked by the person appointing the proxy by:
    1. Attending a meeting and voting in person; or
    2. Signing and delivering to the partner or to a duly authorized agent of the partnership:
      1. A writing stating the appointment of the proxy is revoked; or
      2. A new appointment; or
    3. Remote communication or by authenticated electronic communication, whether or not accompanied by written instructions of the partner, of:
      1. A statement that the proxy is revoked; or
      2. A new appointment.
  4. Revocation in either manner provided in subdivisions b and c of subsection 3 revokes all earlier proxy appointments and is effective:
    1. When filed with a general partner or duly authorized agent of the limited partnership; or
    2. When the remote communication or the authenticated electronic communication is received by a partner or by the duly authorized agent of the partnership.
  5. The death or incapacity of a person appointing a proxy does not affect the right of the limited partnership to accept the authority of the proxy, unless written notice of the death or incapacity is received by a partner or agent authorized to tabulate votes before the proxy exercises authority under that appointment.
  6. Unless the appointment specifically provides otherwise, if two or more persons are appointed as proxies for a partner:
    1. Then any one of them may vote the partnership interests on each item of business in accordance with specific instructions contained in the appointment; or
    2. If no specific instructions are contained in the appointment with respect to voting the partnership interests on a particular item of business, then the partnership interests must be voted as a majority of the proxies determine. If the proxies are equally divided, then the partnership interests may not be voted.
  7. Subject to section 45-10.2-22 and an express restriction, limitation, or specific reservation of authority of the proxy appearing on the appointment, the limited partnership may accept a vote or action by the proxy as the action of the partner. The vote of a proxy is final, binding, and not subject to challenge. However, the proxy is liable to the partner or beneficial owner for damages resulting from a failure to exercise the proxy or from an exercise of the proxy in violation of the authority granted in the appointment.
  8. If a proxy is given authority by a partner to vote on less than all items of business considered at a meeting of partners, then the partner is considered to be present and entitled to vote by the proxy, only with respect to those items of business for which the proxy has authority to vote. A proxy who is given authority by a partner who abstains with respect to an item of business is considered to have authority to vote on the item of business for purposes of this subsection.

The remote communication or the authenticated electronic communication must set forth or be submitted with information from which it can be determined that the revocation or the new appointment was authorized by the partner.

Source:

S.L. 2005, ch. 384, § 6; 2009, ch. 106, § 61.

45-10.2-22. Acceptance of partner act by the limited partnership.

  1. If the name signed on a vote, consent, waiver, or proxy appointment corresponds to the record name of a partner, then the limited partnership if acting in good faith may accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the partner.
  2. Unless the certificate of limited partnership or partnership agreement provides otherwise, if the name signed on a vote, consent, waiver, or proxy appointment does not correspond to the record name of a partner, then the limited partnership if acting in good faith may accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the partner if:
    1. The partner is an organization and the name signed purports to be that of an officer, manager, or agent of the organization;
    2. The name signed purports to be that of an administrator, guardian, or conservator representing the partner, and, if the limited partnership requests, evidence of fiduciary status acceptable to the limited partnership has been presented with respect to the vote, consent, waiver, or proxy appointment;
    3. The name signed purports to be that of a receiver or trustee in bankruptcy of the partner, and, if the limited partnership requests, evidence of this status acceptable to the limited partnership has been presented with respect to the vote, consent, waiver, or proxy appointment;
    4. The name signed purports to be that of a pledgee, beneficial owner, or attorney in fact of the partner, and, if the limited partnership requests, evidence acceptable to the limited partnership of the authority of the signatory to sign for the partner has been presented with respect to the vote, consent, waiver, or proxy appointment; or
    5. Two or more persons hold the interests as cotenants or fiduciaries and the name signed purports to be the name of at least one of the coholders and the person signing appears to be acting on behalf of all the coholders.
  3. The limited partnership may reject a vote, consent, waiver, or proxy appointment if the partner or agent authorized to tabulate votes, acting in good faith, has reasonable basis to doubt the validity of the signature on it or the authority of the signatory to sign for the partner.
  4. The limited partnership or its agent who accepts or rejects a vote, consent, waiver, or proxy appointment in good faith and in accordance with the standards of this section is not liable in damages to the partner for the consequences of the acceptance or rejection.
  5. Action of the limited partnership based on the acceptance or rejection of a vote, consent, waiver, or proxy appointment under this section is valid unless a court of competent jurisdiction determines otherwise.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-23. (201) Formation of limited partnership and certificate of limited partnership.

  1. In order for a limited partnership to be formed, a certificate of limited partnership must be filed with the secretary of state.
    1. The certificate must state:
      1. The name of the limited partnership, which must comply with section 45-10.2-10;
      2. The general character of its business;
      3. The street address and mailing address of the principal executive office;
      4. The name, street address, and mailing address of each general partner;
      5. The name of the registered agent in this state as provided in chapter 10-01.1 and, if a noncommercial registered agent, the address of that noncommercial registered agent in this state; and
      6. Any additional information required by sections 45-10.2-94 through 45-10.2-106.
    2. A certificate of limited partnership may also contain any other matters but may not vary or otherwise affect the provisions specified in subsection 2 of section 45-10.2-12 in a manner inconsistent with that section.
  2. A limited partnership is formed when the certificate of limited partnership is filed with the secretary of state or on the date specified in the certificate of limited partnership that is within ninety days after the filing of the certificate of limited partnership with the secretary of state.
  3. Subject to subdivision b of subsection 1, if any provision of a partnership agreement is inconsistent with the filed certificate of limited partnership or with a filed statement of dissociation, termination, or change or filed articles of conversion or merger:
    1. The partnership agreement prevails as to partners and transferees; and
    2. The filed certificate of limited partnership, statement of dissociation, termination, or change or articles of conversion or merger prevail as to persons, other than partners and transferees, that reasonably rely on the filed record to their detriment.

Source:

S.L. 2005, ch. 384, § 6; 2007, ch. 99, § 61.

Collateral References.

Liability for false information in certificate of limited partnership, under Uniform Limited Partnership Act § 6, 34 A.L.R.2d 1454.

45-10.2-24. (202) Amendment or restatement of certificate.

  1. In order to amend its certificate of limited partnership, a limited partnership must deliver to the secretary of state for filing an amendment or, pursuant to sections 45-10.2-100 through 45-10.2-106, articles of merger stating:
    1. The name of the limited partnership; and
    2. The changes the amendment makes to the certificate as most recently amended or restated.
  2. A limited partnership shall promptly deliver to the secretary of state for filing an amendment to a certificate of limited partnership to reflect:
    1. The change of name of the limited partnership;
    2. The admission of a new general partner;
    3. The dissociation of a person as a general partner; or
    4. The appointment of a person to wind up the activities of the limited partnership under subsection 3 or 4 of section 45-10.2-68.
  3. A general partner that knows that any information in a filed certificate of limited partnership was false when the certificate was filed or has become false due to changed circumstances shall promptly:
    1. Cause the certificate to be amended; or
    2. If appropriate, deliver to the secretary of state for filing a statement of change pursuant to section 45-10.2-18 or a statement of correction pursuant to section 45-10.2-28.
  4. A certificate of limited partnership may be amended at any time for any other proper purpose as determined by the limited partnership.
  5. A restated certificate of limited partnership may be delivered to the secretary of state for filing in the same manner as an amendment.
  6. Subject to subsection 3 of section 45-10.2-27, an amendment or restated certificate is effective when filed by the secretary of state or on a date specified in the amendment or restated certificate that is within ninety days after the filing of the amendment or restated certificate with the secretary of state.
  7. A limited partnership shall submit a written report of any change of address of the principal executive office to the secretary of state without a filing fee or report the change of address on the annual report following the change and need not file an amendment to a certificate of limited partnership.
  8. A limited partnership that files an amendment to change its name and which is the owner of a service mark, trademark, or trade name, is a general partner named in a fictitious name certificate, is a general partner in another limited partnership or limited liability limited partnership, or is a managing partner in a limited liability partnership that is on file with the secretary of state shall change the name of the limited partnership in each of the foregoing registrations that is applicable when the limited partnership files an amendment to the certificate of limited partnership.

Source:

S.L. 2005, ch. 384, § 6; 2009, ch. 106, § 62; 2015, ch. 86, § 17, effective July 1, 2015.

45-10.2-25. (204) Signing of records.

  1. Each record delivered to the secretary of state for filing pursuant to this chapter must be signed in the following manner:
    1. An initial certificate of limited partnership must be signed by all general partners listed in the certificate.
    2. An amendment to the certificate of limited partnership converting the limited partnership to a limited liability limited partnership must be signed by all general partners listed in the certificate.
    3. An amendment to the certificate of limited partnership designating as general partner a person admitted under subdivision b of subsection 3 of section 45-10.2-66 following the dissociation of a last general partner of a limited partnership must be signed by that person.
    4. An amendment to the certificate of limited partnership required by subsection 3 of section 45-10.2-68 following the appointment of a person to wind up the activities of the dissolved limited partnership must be signed by that person.
    5. Any other amendment to the certificate of limited partnership must be signed by:
      1. At least one general partner listed in the certificate;
      2. Each other person designated in the amendment as a new general partner; and
      3. Each person that the amendment indicates has dissociated as a general partner, unless:
        1. The person is deceased or a guardian or general conservator has been appointed for the person and the amendment so states;
        2. The dissociated person has not been requested by the limited partnership to sign an amendment and the amendment so states; or
        3. The person has previously delivered to the secretary of state for filing a statement of dissociation.
    6. A restated certificate of limited partnership must be signed by at least one general partner listed in the certificate, and, to the extent the restated certificate effects a change under any other subdivision of this subsection, the certificate must be signed in a manner that satisfies that subdivision.
    7. A statement of termination must be signed by a majority in interest of the general partners listed in the certificate of limited partnership or, if the certificate of a dissolved limited partnership lists no general partners, then by the person appointed pursuant to subsection 3 or 4 of section 45-10.2-68 to wind up the activities of the dissolved limited partnership.
    8. Articles of conversion must be signed by all of the general partners listed in the certificate of limited partnership.
    9. Articles of merger must be signed as provided in subsection 1 of section 45-10.2-102.
    10. Any other record delivered on behalf of a limited partnership to the secretary of state for filing must be signed by at least one general partner listed in the certificate of limited partnership.
    11. A statement by a person pursuant to subdivision d of subsection 1 of section 45-10.2-59 stating that the person has dissociated as a general partner must be signed by that person.
    12. A statement of withdrawal by a person pursuant to section 45-10.2-36 must be signed by that person.
    13. A record delivered on behalf of a foreign limited partnership to the secretary of state for filing must be signed by at least one general partner of the foreign limited partnership.
    14. Any other record delivered on behalf of any person to the secretary of state for filing must be signed by that person.
  2. Any person may sign by an attorney in fact any record to be filed pursuant to this chapter.

Source:

S.L. 2005, ch. 384, § 6; 2015, ch. 86, § 18, effective July 1, 2015.

45-10.2-26. (205) Signing and filing pursuant to judicial order.

  1. If a person required by this chapter to sign a record or deliver a record to the secretary of state for filing does not do so, then any other person that is aggrieved may petition the district court to order:
    1. The person to sign the record and deliver the record to the secretary of state for filing; or
    2. The secretary of state to file the record unsigned.
  2. If the person aggrieved under subsection 1 is not the limited partnership or foreign limited partnership to which the record pertains, then the aggrieved person shall make the limited partnership or foreign limited partnership a party to the action. A person aggrieved under subsection 1 may seek the remedies provided in subsection 1 in the same action in combination or in the alternative.
  3. A record filed unsigned pursuant to this section is effective without being signed.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-27. (206) Delivery to and filing of records by secretary of state and effective date.

  1. A record authorized or required to be delivered to the secretary of state for filing under this chapter must be captioned to describe the purpose of the record, be in a medium permitted by the secretary of state, and be delivered to the secretary of state. If the secretary of state determines that a record complies with the filing requirements of this chapter, then the secretary of state shall file the record and, except for an annual report, return a copy of the filed record to the person that delivered it to the secretary of state for filing. That person shall then:
    1. For a statement of dissociation, send a copy of the filed statement:
      1. To the person which the statement indicates has dissociated as a general partner; and
      2. To the limited partnership;
    2. For a statement of withdrawal, send a copy of the filed statement:
      1. To the person on whose behalf the record was filed; and
      2. If the statement refers to an existing limited partnership, to the limited partnership; and
    3. For all other records, send a copy of the filed record to the person on whose behalf the record was filed.
  2. Upon request and payment of a fee provided in section 45-10.2-109, the secretary of state shall send to the requester a certified copy of the requested record.
  3. Except as otherwise provided in sections 45-10.2-18 and 45-10.2-28, a record delivered to the secretary of state for filing under this chapter may specify a delayed effective date within ninety days. Except as otherwise provided in this chapter, a record filed by the secretary of state is effective:
    1. If the record does not specify a delayed effective date within ninety days, then on the date the record is filed as evidenced by the endorsement of the secretary of state of the date on the record.
    2. If the record specifies a delayed effective date within ninety days, then on the specified date.

Source:

S.L. 2005, ch. 384, § 6; 2007, ch. 101, § 70.

45-10.2-28. Correcting a filed record.

With respect to correction of a filed record:

  1. Whenever a record authorized by this chapter to be filed with the secretary of state has been filed and inaccurately records the action referred to in the record, contains an inaccurate or erroneous statement, or was defectively or erroneously signed, sealed, acknowledged, or verified, the record may be corrected by filing a statement of correction.
  2. A statement of correction:
    1. Must:
      1. Be signed by:
        1. The person that signed the original record; or
        2. By a person authorized to sign on behalf of that person;
      2. Set forth the name of the limited partnership that filed the record;
      3. Identify the record to be corrected by description and by the date of its filing with the secretary of state;
      4. Identify the inaccuracy, error, or defect to be corrected; and
      5. Set forth a statement in corrected form of the portion of the record to be corrected.
    2. May not revoke or nullify the record.
  3. The statement of correction must be filed with the secretary of state.
  4. With respect to the effective date of correction:
    1. A certificate issued by the secretary of state before a record is corrected, with respect to the effect of filing the original record, is considered to be applicable to the record as corrected as of the date the record as corrected is considered to have been filed under this subsection.
    2. After a statement of correction has been filed with the secretary of state, the original record as corrected is considered to have been filed:
      1. On the date the statement of correction was filed:
        1. As to persons adversely affected by the correction; and
        2. For the purposes of subsections 3 and 4 of section 45-10.2-06; and
      2. On the date the original record was filed as to all other persons and for all other purposes.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-29. (208) Liability for false information in filed record.

If a record delivered to the secretary of state for filing under this chapter and filed by the secretary of state contains false information, then a person that suffers loss by reliance on the information may recover damages for the loss from:

  1. A person that signed the record, or caused another to sign it on behalf of a person, and knew the information to be false at the time the record was signed; and
  2. A general partner that has notice that the information was false when the record was filed or has become false because of changed circumstances, if the general partner has notice for a reasonably sufficient time before the information is relied upon to enable the general partner to effect an amendment under section 45-10.2-24, file a petition pursuant to section 45-10.2-26, or deliver to the secretary of state for filing a statement of change pursuant to section 45-10.2-18 or a statement of correction pursuant to section 45-10.2-28.

Source:

S.L. 2005, ch. 384, § 6.

Collateral References.

Liability for false information in certificate of limited partnership, under Uniform Limited Partnership Act § 6, 34 A.L.R.2d 1454.

45-10.2-30. (209) Certificate of existence or authorization.

  1. The secretary of state, upon request and payment of the fee provided in section 45-10.2-109, shall furnish a certificate of existence for a limited partnership if the records filed in the office of the secretary of state show that the secretary of state has filed a certificate of limited partnership and has not filed a statement of termination. A certificate of existence must state:
    1. The name of the limited partnership;
    2. That it was duly formed under the laws of this state and date of formation; and
    3. Whether all fees and penalties due to the secretary of state under this chapter have been paid.
  2. The secretary of state, upon request and payment of the fee provided in section 45-10.2-109, shall furnish a certificate of authorization for a foreign limited partnership if the records filed in the office of the secretary of state show that the secretary of state has filed a certificate of authority, has not revoked the certificate of authority, and has not filed a notice of cancellation. A certificate of authorization must state:
    1. The name of the foreign limited partnership;
    2. That it is authorized to transact business in this state; and
    3. Whether all fees and penalties due to the secretary of state under this chapter have been paid.
  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 limited partnership or foreign limited partnership is in existence or is authorized to transact business in this state.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-31. (301) Becoming a limited partner.

A person becomes a limited partner:

  1. As provided in the partnership agreement;
  2. As the result of a conversion or merger under sections 45-10.2-94 through 45-10.2-106; or
  3. With the consent of all of the partners.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-32. (302) No right or power as limited partner to bind limited partnership.

A limited partner does not have the right or the power as a limited partner to act for or bind the limited partnership.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-33. (303) No liability as limited partner for limited partnership obligation.

An obligation of a limited partnership, whether arising in contract, tort, or otherwise, is not the obligation of a limited partner. A limited partner is not personally liable, directly or indirectly, by way of contribution or otherwise, for an obligation of the limited partnership solely by reason of being a limited partner, even if the limited partner participates in the management and control of the limited partnership.

Source:

S.L. 2005, ch. 384, § 6.

Collateral References.

Liability of limited partner arising from taking part in control of business under uniform limited partnership act, 79 A.L.R.4th 427.

45-10.2-34. (304) Right of limited partner and former limited partner to information.

  1. On ten days’ demand, made in a record received by the limited partnership, a limited partner may inspect and copy required information during regular business hours in the principal executive office of the limited partnership. The limited partner need not have any particular purpose for seeking the information.
  2. During regular business hours and at a reasonable location specified by the limited partnership, a limited partner may obtain from the limited partnership and inspect and copy true and full information regarding the state of the activities and financial condition of the limited partnership and other information regarding the activities of the limited partnership as is just and reasonable if:
    1. The limited partner seeks the information for a purpose reasonably related to an interest as a limited partner;
    2. The limited partner makes a demand in a record received by the limited partnership, describing with reasonable particularity the information sought and the purpose for seeking the information; and
    3. The information sought is directly connected to the purpose of the limited partner.
  3. Within ten days after receiving a demand pursuant to subsection 2, the limited partnership in a record shall inform the limited partner that made the demand:
    1. What information the limited partnership will provide in response to the demand;
    2. When and where the limited partnership will provide the information; and
    3. If the limited partnership declines to provide any demanded information, the reasons of the limited partnership for declining.
  4. Subject to subsection 6, a person dissociated as a limited partner may inspect and copy required information during regular business hours in the designated office of the limited partnership if:
    1. The information pertains to the period during which the person was a limited partner;
    2. The person seeks the information in good faith; and
    3. The person meets the requirements of subsection 2.
  5. The limited partnership shall respond to a demand made pursuant to subsection 4 in the same manner as provided in subsection 3.
  6. If a limited partner dies, then section 45-10.2-65 applies.
  7. The limited partnership may impose reasonable restrictions on the use of information obtained under this section. In a dispute concerning the reasonableness of a restriction under this subsection, the limited partnership has the burden of proving reasonableness.
  8. A limited partnership may charge a person that makes a demand under this section reasonable costs of copying, limited to the costs of labor and material.
  9. Whenever this chapter or a partnership agreement provides for a limited partner to give or withhold consent to a matter, before the consent is given or withheld, the limited partnership shall, without demand, provide the limited partner with all information material to the decision of the limited partner that the limited partnership knows.
  10. A limited partner or person dissociated as a limited partner may exercise the rights under this section through an attorney or other agent. Any restriction imposed under subsection 7 or by the partnership agreement applies both to the attorney or other agent and to the limited partner or person dissociated as a limited partner.
  11. The rights stated in this section do not extend to a person as transferee, but may be exercised by the legal representative of an individual under legal disability who is a limited partner or person dissociated as a limited partner.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-35. (305) Limited duties of limited partners.

  1. A limited partner does not have any fiduciary duty to the limited partnership or to any other partner solely by reason of being a limited partner.
  2. A limited partner shall discharge the duties to the partnership and the other partners under this chapter or under the partnership agreement and exercise any rights consistently with the obligation of good faith and fair dealing.
  3. A limited partner does not violate a duty or obligation under this chapter or under the partnership agreement merely because the conduct of the limited partner furthers the interest of that limited partner.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-36. (306) Person erroneously believing self to be limited partner.

  1. Except as otherwise provided in subsection 2, a person that makes an investment in a business enterprise and erroneously but in good faith believes that the person has become a limited partner in the enterprise is not liable for the obligations of the enterprise by reason of making the investment, receiving distributions from the enterprise, or exercising any rights of or appropriate to a limited partner, if, on ascertaining the mistake, the person:
    1. Causes an appropriate certificate of limited partnership, amendment, or statement of correction to be signed and delivered to the secretary of state for filing; or
    2. Withdraws from future participation as an owner in the enterprise by signing and delivering to the secretary of state for filing a statement of withdrawal under this section.
  2. A person that makes an investment described in subsection 1 is liable to the same extent as a general partner to any third party that enters into a transaction with the enterprise, believing in good faith that the person is a general partner, before the secretary of state files a statement of withdrawal, certificate of limited partnership, amendment, or statement of correction to show that the person is not a general partner.
  3. If a person makes a diligent effort in good faith to comply with subdivision a of subsection 1 and is unable to cause the appropriate certificate of limited partnership, amendment, or statement of correction to be signed and delivered to the secretary of state for filing, then the person has the right to withdraw from the enterprise pursuant to subdivision b of subsection 1 even if the withdrawal would otherwise breach an agreement with others that are or have agreed to become co-owners of the enterprise.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-37. (401) Becoming general partner.

A person becomes a general partner:

  1. As provided in the partnership agreement;
  2. Under subdivision b of subsection 3 of section 45-10.2-66 following the dissociation of the last general partner of a limited partnership;
  3. As the result of a conversion or merger under sections 45-10.2-94 through 45-10.2-106; or
  4. With the consent of all the partners.

Source:

S.L. 2005, ch. 384, § 6.

Collateral References.

Limited partnership: sufficiency of procedure for designating or admitting additional general partner, 6 A.L.R.4th 1277.

45-10.2-38. (402) General partner agent of limited partnership.

  1. Each general partner is an agent of the limited partnership for the purposes of its activities. An act of a general partner, including the signing of a record in the name of the partnership, for apparently carrying on in the ordinary course the activities of the limited partnership or activities of the kind carried on by the limited partnership binds the limited partnership, unless the general partner did not have authority to act for the limited partnership in the particular matter and the person with which the general partner was dealing knew, had received a notification, or had notice under subsection 4 of section 45-10.2-06 that the general partner lacked authority.
  2. An act of a general partner which is not apparently for carrying on in the ordinary course the activities of the limited partnership or activities of the kind carried on by the limited partnership binds the limited partnership only if the act was actually authorized by all of the other partners.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-39. (403) Limited partnership liable for actionable conduct of general partner.

  1. A limited partnership is liable for loss or injury caused to a person, or for a penalty incurred, as a result of a wrongful act or omission, or other actionable conduct, of a general partner acting in the ordinary course of activities of the limited partnership or with authority of the limited partnership.
  2. If, in the course of the activities of the limited partnership or while acting with authority of the limited partnership, a general partner receives or causes the limited partnership to receive money or property of a person not a partner, and the money or property is misapplied by a general partner, then the limited partnership is liable for the loss.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-40. (404) Liability of general partner.

  1. Except as otherwise provided in subsections 2 and 3, all general partners are liable jointly and severally for all obligations of the limited partnership unless otherwise agreed by the claimant or provided by law.
  2. A person that becomes a general partner of an existing limited partnership is not personally liable for an obligation of a limited partnership incurred before the person became a general partner.
  3. An obligation of a limited partnership incurred while the limited partnership is a limited liability limited partnership, whether arising in contract, tort, or otherwise, is solely the obligation of the limited partnership.
    1. A general partner is not personally liable, directly or indirectly, by way of contribution or otherwise, for such an obligation solely by reason of being or acting as a general partner.
    2. This subsection applies despite anything inconsistent in the partnership agreement that existed immediately before the consent required under subdivision b of subsection 2 of section 45-10.2-42 to become a limited liability limited partnership pursuant to chapter 45-23.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-41. (405) Actions by and against partnership and partners.

  1. To the extent not inconsistent with section 45-10.2-40, a general partner may be joined in an action against the limited partnership or named in a separate action.
  2. A judgment against a limited partnership is not by itself a judgment against a general partner. A judgment against a limited partnership may not be satisfied from assets of a general partner unless there is also a judgment against the general partner.
  3. A judgment creditor of a general partner may not levy execution against the assets of the general partner to satisfy a judgment based on a claim against the limited partnership, unless the partner is personally liable for the claim under section 45-10.2-40, and:
    1. A judgment based on the same claim has been obtained against the limited partnership and a writ of execution on the judgment has been returned unsatisfied in whole or in part;
    2. The limited partnership is a debtor in bankruptcy;
    3. The general partner has agreed that the creditor need not exhaust limited partnership assets;
    4. A court grants permission to the judgment creditor to levy execution against the assets of a general partner based on a finding:
      1. That limited partnership assets subject to execution are clearly insufficient to satisfy the judgment;
      2. That exhaustion of limited partnership assets is excessively burdensome; or
      3. That the grant of permission is an appropriate exercise of equitable powers of the court; or
    5. Liability is imposed on the general partner by law or contract independent of the existence of the limited partnership.

Source:

S.L. 2005, ch. 384, § 6; 2009, ch. 106, § 63.

Collateral References.

Partner’s breach of fiduciary duty to copartner on sale of partnership interest to another partner, 4 A.L.R.4th 1122.

Derivative liability of partner for punitive damages for wrongful act of copartner, 14 A.L.R.4th 1335.

Right of limited partner to maintain derivative action on behalf of partnership, 26 A.L.R.4th 264.

Civil liability of one partner to another or to the partnership based on partner’s personal purchase of partnership property during existence of partnership, 37 A.L.R.4th 494.

Liability of limited partner arising from taking part in control of business under uniform limited partnership act, 79 A.L.R.4th 427.

45-10.2-42. (406) Management rights of general partner.

  1. Each general partner has equal rights in the management and conduct of the activities of the limited partnership. Except as expressly provided in this chapter, any matter relating to the activities of the limited partnership may be exclusively decided by the general partner or, if there is more than one general partner, by a majority of the general partners.
  2. The consent of each partner is necessary:
    1. To amend the partnership agreement;
    2. Subject to section 45-10.2-104, to amend the certificate of limited partnership to convert the limited partnership to a limited liability limited partnership; and
    3. To sell, lease, exchange, or otherwise dispose of all, or substantially all, of the property of the limited partnership, with or without the good will, other than in the usual and regular course of the activities of the limited partnership.
  3. A limited partnership shall reimburse a general partner for payments made and indemnify a general partner for liabilities incurred by the general partner in the ordinary course of the activities of the partnership or for the preservation of its activities or property.
  4. A limited partnership shall reimburse a general partner for an advance to the limited partnership beyond the amount of capital the general partner agreed to contribute.
  5. A payment or advance made by a general partner which gives rise to an obligation of the limited partnership under subsection 3 or 4 constitutes a loan to the limited partnership which accrues interest from the date of the payment or advance.
  6. A general partner is not entitled to remuneration for services performed for the partnership.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-43. (407) Right of general partner and former general partner to information.

  1. A general partner, without having any particular purpose for seeking the information, may inspect and copy during regular business hours:
    1. In the principal executive office of the limited partnership, required information; and
    2. At a reasonable location specified by the limited partnership, any other records maintained by the limited partnership regarding the activities and financial condition of the limited partnership.
  2. Each general partner and the limited partnership shall furnish to a general partner:
    1. Without demand, any information concerning the activities and financial condition of the limited partnership reasonably required for the proper exercise of the rights and duties of the general partner under the partnership agreement or this chapter; and
    2. On demand, any other information concerning the activities of the limited partnership, except to the extent the demand or the information demanded is unreasonable or otherwise improper under the circumstances.
  3. Subject to subsection 5, on ten days’ demand made in a record received by the limited partnership, a person dissociated as a general partner may have access to the information and records described in subsection 1 at the location specified in subsection 1 if:
    1. The information or record pertains to the period during which the person was a general partner;
    2. The person seeks the information or record in good faith; and
    3. The person satisfies the requirements imposed on a limited partner by subsection 2 of section 45-10.2-34.
  4. The limited partnership shall respond to a demand made pursuant to subsection 3 in the same manner as provided in subsection 3 of section 45-10.2-34.
  5. If a general partner dies, then section 45-10.2-65 applies.
  6. The limited partnership may impose reasonable restrictions on the use of information under this section. In any dispute concerning the reasonableness of a restriction under this subsection, the limited partnership has the burden of proving reasonableness.
  7. A limited partnership may charge a person dissociated as a general partner that makes a demand under this section reasonable costs of copying, limited to the costs of labor and material.
  8. A general partner or person dissociated as a general partner may exercise the rights under this section through an attorney or other agent. Any restriction imposed under subsection 6 or by the partnership agreement applies both to the attorney or other agent and to the general partner or person dissociated as a general partner.
  9. The rights under this section do not extend to a person as transferee, but the rights under subsection 3 of a person dissociated as a general partner may be exercised by the legal representative of an individual who dissociated as a general partner under subdivisions b and c of subsection 7 of section 45-10.2-57.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-44. (408) General standards of conduct of general partner.

  1. The only fiduciary duties that a general partner has to the limited partnership and the other partners are the duties of loyalty and care under subsections 2 and 3.
  2. A duty of loyalty of the general partner to the limited partnership and the other partners is limited to the following:
    1. To account to the limited partnership and hold as trustee for it any property, profit, or benefit derived by the general partner in the conduct and winding up of the activities of the limited partnership or derived from a use by the general partner of limited partnership property, including the appropriation of a limited partnership opportunity;
    2. To refrain from dealing with the limited partnership in the conduct or winding up of the activities of the limited partnership as or on behalf of a party having an interest adverse to the limited partnership; and
    3. To refrain from competing with the limited partnership in the conduct or winding up of the activities of the limited partnership.
  3. Duty of care of a general partner to the limited partnership and the other partners in the conduct and winding up of the activities of a limited partnership is limited to refraining from engaging in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law.
  4. A general partner shall discharge the duties to the partnership and the other partners under this chapter or under the partnership agreement and exercise any rights consistently with the obligation of good faith and fair dealing.
  5. A general partner does not violate a duty or obligation under this chapter or under the partnership agreement merely because conduct of the general partner furthers the interest of that general partner.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-45. (409) Transfer of partnership property.

  1. Subject to the effect of a notification effective under subsections 4 and 9 of section 45-10.2-06, property held in the name of a limited partnership may be transferred by a record of transfer signed by a general partner in the limited partnership name.
  2. If a transfer has been made to an initial transferee through a record of transfer effective under subsection 1, a limited partnership may recover the transferred limited partnership property:
    1. From a transferee only if the limited partnership proves that signing the record of initial transfer did not bind the partnership under section 45-10.2-38; and
    2. As to a subsequent transferee who gave value for the property, only if the limited partnership proves that the subsequent transferee knew or had received a notification that the person that signed the record of initial transfer lacked authority to bind the partnership.
  3. A partnership may not recover partnership property from a subsequent transferee if the partnership would not have been entitled to recover the property under subsection 2 from any earlier transferee of the property.
  4. This section does not affect the power of a person dissociated as a general partner to bind a limited partnership under subsection 1 of section 45-10.2-60 and subsection 2 of section 45-10.2-70.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-46. (501) Form of contribution.

A contribution of a partner may consist of tangible or intangible property or other benefit to the limited partnership, including money, services performed, promissory notes, other agreements to contribute cash or property, and contracts for services to be performed.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-47. (502) Liability for contribution.

  1. The obligation of a partner to contribute money or other property or other benefit to, or to perform services for, a limited partnership is not excused by the death of a partner, disability, or other inability to perform personally.
  2. If a partner does not make a promised nonmonetary contribution, the partner is obligated at the option of the limited partnership to contribute money equal to that portion of the value, as stated in the required information, of the stated contribution that has not been made.
  3. The obligation of a partner to make a contribution or return money or other property paid or distributed in violation of this chapter may be compromised only by consent of all partners. A creditor of a limited partnership that extends credit or otherwise acts in reliance on an obligation described in subsection 1, without notice of any compromise under this subsection, may enforce the original obligation.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-48. (503) Sharing of distributions.

A distribution by a limited partnership must be shared among the partners on the basis of the value, as stated in the required information when the limited partnership decides to make the distribution, of the contributions the limited partnership has received from each partner.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-49. (504) Interim distributions.

A partner does not have a right to any distribution before the dissolution and winding up of the limited partnership unless the limited partnership decides to make an interim distribution.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-50. (505) No distribution on account of dissociation.

A person does not have a right to receive a distribution on account of dissociation.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-51. (506) Distribution in kind.

A partner does not have a right to demand or receive any distribution from a limited partnership in any form other than cash. Subject to subsection 2 of section 45-10.2-75, a limited partnership may distribute an asset in kind to the extent each partner receives a percentage of the asset equal to the share of distributions of the partner.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-52. (507) Right to distribution.

When a partner or transferee becomes entitled to receive a distribution, the partner or transferee has the status of, and is entitled to all remedies available to, a creditor of the limited partnership with respect to the distribution. However, the obligation of the limited partnership to make a distribution is subject to offset for any amount owed to the limited partnership by the partner or dissociated partner on whose account the distribution is made.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-53. (508) Limitation on distribution.

  1. A limited partnership may not make a distribution in violation of the partnership agreement.
  2. A limited partnership may not make a distribution if after the distribution:
    1. The limited partnership would not be able to pay its debts as they become due in the ordinary course of the activities of the limited partnership; or
    2. The total assets of the limited partnership would be less than the sum of its total liabilities plus the amount that would be needed, if the limited partnership were to be dissolved, wound up, and terminated at the time of the distribution, to satisfy the preferential rights upon dissolution, winding up, and termination of partners whose preferential rights are superior to those of persons receiving the distribution.
  3. A limited partnership may base a determination that a distribution is not prohibited under subsection 2 on financial statements prepared on the basis of accounting practices and principles that are reasonable in the circumstances or on a fair valuation or other method that is reasonable in the circumstances.
  4. Except as otherwise provided in subsection 7, the effect of a distribution under subsection 2 is measured:
    1. In the case of distribution by purchase, redemption, or other acquisition of a transferable interest in the limited partnership, as of the date money or other property is transferred or debt incurred by the limited partnership; and
    2. In all other cases, as of the date:
      1. The distribution is authorized, if the payment occurs within one hundred twenty days after that date; or
      2. The payment is made, if payment occurs more than one hundred twenty days after the distribution is authorized.
  5. Indebtedness of a limited partnership to a partner incurred by reason of a distribution made in accordance with this section is at parity with the indebtedness of the limited partnership to its general, unsecured creditors.
  6. Indebtedness of a limited partnership, including indebtedness issued in connection with or as part of a distribution, is not considered a liability for purposes of subsection 2 if the terms of the indebtedness provide that payment of principal and interest are made only to the extent that a distribution could then be made to partners under this section.
  7. If indebtedness is issued as a distribution, each payment of principal or interest on the indebtedness is treated as a distribution, the effect of which is measured on the date the payment is made.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-54. (509) Liability for improper distributions.

  1. A general partner that consents to a distribution made in violation of section 45-10.2-53 is personally liable to the limited partnership for the amount of the distribution which exceeds the amount that could have been distributed without the violation if it is established that in consenting to the distribution the general partner failed to comply with section 45-10.2-44.
  2. A partner or transferee that received a distribution knowing that the distribution to that partner or transferee was made in violation of section 45-10.2-53 is personally liable to the limited partnership but only to the extent that the distribution received by the partner or transferee exceeded the amount that could have been properly paid under section 45-10.2-53.
  3. A general partner against which an action is commenced under subsection 1 may:
    1. Implead in the action any other person that is liable under subsection 1 and compel contribution from the person; and
    2. Implead in the action any person that received a distribution in violation of subsection 2 and compel contribution from the person in the amount the person received in violation of subsection 2.
  4. An action under this section is barred if it is not commenced within two years after the distribution.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-55. (601) Dissociation as limited partner.

  1. A person does not have a right to dissociate as a limited partner before the termination of the limited partnership.
  2. A person is dissociated from a limited partnership as a limited partner upon the occurrence of any of the following events:
    1. The limited partnership has notice of the express will of a person to withdraw as a limited partner or on a later date specified by the person;
    2. An event agreed to in the partnership agreement as causing the dissociation of a person as a limited partner;
    3. The expulsion of a person as a limited partner pursuant to the partnership agreement;
    4. The expulsion of a person as a limited partner by the unanimous consent of the other partners if:
      1. It is unlawful to carry on the activities of the limited partnership with the person as a limited partner;
      2. There has been a transfer of all of the transferable interest of the person in the limited partnership, other than a transfer for security purposes, or a court order charging the interest of the person, which has not been foreclosed;
      3. The person is a corporation and, within ninety days after the limited partnership notifies the person that it will be expelled as a limited partner because it has filed a certificate of dissolution or the equivalent, its charter has been revoked, or its right to conduct business has been suspended by the jurisdiction of its incorporation, there is not revocation of the certificate of dissolution or no reinstatement of its charter or its right to conduct business; or
      4. The person is a limited liability company or partnership that has been dissolved and whose business is being wound up;
    5. On application by the limited partnership, the expulsion of the person as a limited partner by judicial order because:
      1. The person engaged in wrongful conduct that adversely and materially affected the activities of the limited partnership;
      2. The person willfully or persistently committed a material breach of the partnership agreement or of the obligation of good faith and fair dealing under section 45-10.2-35; or
      3. The person engaged in conduct relating to the activities of the limited partnership which make it not reasonably practicable to carry on the activities with the person as limited partner;
    6. In the case of a person who is an individual, the death of the person;
    7. In the case of a person that is a trust or is acting as a limited partner by virtue of being a trustee of a trust, distribution of the entire transferable interest in the limited partnership of the trust, but not merely by reason of the substitution of a successor trustee;
    8. In the case of a person that is an estate or is acting as a limited partner by virtue of being a personal representative of an estate, distribution of the entire transferable interest of the estate in the limited partnership, but not merely by reason of the substitution of a successor personal representative;
    9. Termination of a limited partner that is not an individual, partnership, limited liability company, corporation, trust, or estate; and
    10. The participation by limited partnership in a conversion or merger under sections 45-10.2-94 through 45-10.2-106, if the limited partnership:
      1. Is not the converted or surviving organization; or
      2. Is the converted or surviving organization but, as a result of the conversion or merger, the person ceases to be a limited partner.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-56. (602) Effect of dissociation as limited partner.

  1. Upon the dissociation of a person as a limited partner:
    1. Subject to section 45-10.2-65, the person does not have further rights as a limited partner;
    2. The obligation of a person for good faith and fair dealing as a limited partner under subsection 2 of section 45-10.2-35 continues only as to matters arising and events occurring before the dissociation; and
    3. Subject to section 45-10.2-65 and sections 45-10.2-94 through 45-10.2-106, any transferable interest owned by the person in the capacity as a limited partner immediately before dissociation is owned by the person as a mere transferee.
  2. The dissociation of a person as a limited partner does not of itself discharge the person from any obligation to the limited partnership or the other partners which the person incurred while a limited partner.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-57. (603) Dissociation as general partner.

A person is dissociated from a limited partnership as a general partner upon the occurrence of any of the following events:

  1. The limited partnership having notice of the express will of a person to withdraw as a general partner or on a later date specified by the person;
  2. An event agreed to in the partnership agreement as causing the dissociation of a person as a general partner;
  3. The expulsion of a person as a general partner pursuant to the partnership agreement;
  4. The expulsion of a person as a general partner by the unanimous consent of the other partners if:
    1. It is unlawful to carry on the activities of the limited partnership with the person as a general partner;
    2. There has been a transfer of all or substantially all of the transferable interest of a person in the limited partnership, other than a transfer for security purposes, or a court order charging the interest of a person, which has not been foreclosed;
    3. The person is a corporation and, within ninety days after the limited partnership notifies the person that it will be expelled as a general partner because it filed a certificate of dissolution or the equivalent, its charter has been revoked, or its right to conduct business has been suspended by the jurisdiction of its incorporation, there is no revocation of the certificate of dissolution or no reinstatement of its charter or its right to conduct business; or
    4. The person is a limited liability company or partnership that has been dissolved and whose business is being wound up;
  5. On application by the limited partnership, the expulsion of a person as a general partner by judicial determination because:
    1. The person engaged in wrongful conduct that adversely and materially affected the limited partnership activities;
    2. The person willfully or persistently committed a material breach of the partnership agreement or of a duty owed to the partnership or the other partners under section 45-10.2-44; or
    3. The person engaged in conduct relating to the activities of the limited partnership which makes it not reasonably practicable to carry on the activities of the limited partnership with the person as a general partner;
  6. The person:
    1. Becoming a debtor in bankruptcy;
    2. Executing an assignment for the benefit of creditors;
    3. Seeking, consenting to, or acquiescing in the appointment of a trustee, receiver, or liquidator of the person or of all or substantially all of the property of the person; or
    4. Failing, within ninety days after the appointment, to have vacated or stayed the appointment of a trustee, receiver, or liquidator of the general partner or of all or substantially all of the property of the person obtained without the consent or acquiescence of the person, or failing within ninety days after the expiration of a stay to have the appointment vacated;
  7. In the case of a person who is an individual:
    1. The death of the person;
    2. The appointment of a guardian or general conservator for the person; or
    3. A judicial determination that the person has otherwise become incapable of performing the duties as a general partner under the partnership agreement;
  8. In the case of a person that is a trust or is acting as a general partner by virtue of being a trustee of a trust, distribution of the entire transferable interest of the trust in the limited partnership, but not merely by reason of the substitution of a successor trustee;
  9. In the case of a person that is an estate or is acting as a general partner by virtue of being a personal representative of an estate, distribution of the entire transferable interest of the estate in the limited partnership, but not merely by reason of the substitution of a successor personal representative;
  10. Termination of a general partner that is not an individual, partnership, limited liability company, corporation, trust, or estate; or
  11. The participation of the limited partnership in a conversion or merger under sections 45-10.2-94 through 45-10.2-106, if the limited partnership:
    1. Is not the converted or surviving organization; or
    2. Is the converted or surviving organization but, as a result of the conversion or merger, the person ceases to be a general partner.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-58. (604) Power of a person to dissociate as a general partner — Wrongful dissociation.

  1. A person has the power to dissociate as a general partner at any time, rightfully or wrongfully, by express will pursuant to subsection 1 of section 45-10.2-57.
  2. The dissociation of a person as a general partner is wrongful only if:
    1. It is in breach of an express provision of the partnership agreement; or
    2. It occurs before the termination of the limited partnership and:
      1. The person withdraws as a general partner by express will;
      2. The person is expelled as a general partner by judicial determination under subsection 5 of section 45-10.2-57;
      3. The person is dissociated as a general partner by becoming a debtor in bankruptcy; or
      4. In the case of a person that is not an individual, trust other than a business trust, or estate, the person is expelled or otherwise dissociated as a general partner because it willfully dissolved or terminated.
  3. A person that wrongfully dissociates as a general partner is liable to the limited partnership and, subject to section 45-10.2-89, to the other partners for damages caused by the dissociation. The liability is in addition to any other obligation of the general partner to the limited partnership or to the other partners.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-59. (605) Effect of dissociation as general partner.

  1. Upon the dissociation of a person as a general partner:
    1. The right of the person to participate as a general partner in the management and conduct of the activities of the partnership terminates;
    2. The duty of loyalty of the person as a general partner under subdivision c of subsection 2 of section 45-10.2-44 terminates;
    3. The duty of loyalty of the person as a general partner under subdivisions a and b of subsection 2 of section 45-10.2-44 and duty of care under subsection 3 of section 45-10.2-44 continue only with regard to matters arising and events occurring before dissociation of the person as a general partner;
    4. The person may sign and deliver to the secretary of state for filing a statement of dissociation pertaining to the person and, at the request of the limited partnership, shall sign an amendment to the certificate of limited partnership which states that the person has dissociated; and
    5. Subject to section 45-10.2-65 and sections 45-10.2-94 through 45-10.2-106, any transferable interest owned by the person immediately before dissociation in the capacity as a general partner is owned by the person as a mere transferee.
  2. The dissociation of a person as a general partner does not of itself discharge the person from any obligation to the limited partnership or the other partners which the person incurred while a general partner.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-60. (606) Power to bind and liability to limited partnership before dissolution of partnership of person dissociated as general partner.

  1. After a person is dissociated as a general partner and before the limited partnership is dissolved, or is converted or merged out of existence under sections 45-10.2-94 through 45-10.2-106, the limited partnership is bound by an act of the person if:
    1. The act would have bound the limited partnership under section 45-10.2-38 before the dissociation; and
    2. At the time the other party enters into the transaction:
      1. Less than two years have passed since the dissociation; and
      2. The other party does not have notice of the dissociation and reasonably believes that the person is a general partner.
  2. If a limited partnership is bound under subsection 1, then the person dissociated as a general partner which caused the limited partnership to be bound is liable:
    1. To the limited partnership for any damage caused to the limited partnership arising from the obligation incurred under subsection 1; and
    2. If a general partner or another person dissociated as a general partner is liable for the obligation, then to the general partner or other person for any damage caused to the general partner or other person arising from the liability.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-61. (607) Liability to other persons of person dissociated as general partner.

  1. The dissociation of a person as a general partner does not of itself discharge the liability of a person as a general partner for an obligation of the limited partnership incurred before dissociation. Except as otherwise provided in subsections 2 and 3, the person is not liable for an obligation of a limited partnership incurred after dissociation.
  2. A person whose dissociation as a general partner resulted in a dissolution and winding up of the activities of the limited partnership is liable to the same extent as a general partner under section 45-10.2-40 on an obligation incurred by the limited partnership under section 45-10.2-70.
  3. A person that has dissociated as a general partner but whose dissociation did not result in a dissolution and winding up of the activities of the limited partnership is liable on a transaction entered into by the limited partnership after the dissociation only if:
    1. A general partner would be liable on the transaction; and
    2. At the time the other party enters into the transaction:
      1. Less than two years have passed since the dissociation; and
      2. The other party does not have notice of the dissociation and reasonably believes that the person is a general partner.
  4. By agreement with a creditor of a limited partnership and the limited partnership, a person dissociated as a general partner may be released from liability for an obligation of the limited partnership.
  5. A person dissociated as a general partner is released from liability for an obligation of the limited partnership if the creditor of the limited partnership, with notice of the dissociation of the person as a general partner but without the consent of the person, agrees to a material alteration in the nature or time of payment of the obligation.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-62. (701) Transferable interest of a partner.

The only interest of a partner that is transferable is the transferable interest of the partner. A transferable interest is personal property.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-63. (702) Transfer of the transferable interest of a partner.

  1. A transfer, in whole or in part, of the transferable interest of a partner:
    1. Is permissible;
    2. Does not by itself cause the dissociation of a partner or a dissolution and winding up of the activities of the limited partnership; and
    3. Does not, as against the other partners or the limited partnership, entitle the transferee:
      1. To participate in the management or conduct of the activities of the limited partnership;
      2. To require access to information concerning the transactions of the limited partnership except as otherwise provided in subsection 3; or
      3. To inspect or copy the required information or the other records of the limited partnership.
  2. A transferee has a right to receive, in accordance with the transfer:
    1. Distributions to which the transferor would otherwise be entitled; and
    2. Upon the dissolution and winding up of the activities of the limited partnership the net amount otherwise distributable to the transferor.
  3. In a dissolution and winding up, a transferee is entitled to an account of the transactions of the limited partnership only from the date of dissolution.
  4. Upon transfer, the transferor retains the rights of a partner other than the interest in distributions transferred and retains all duties and obligations of a partner.
  5. A limited partnership need not give effect to the rights of a transferee under this section until the limited partnership has notice of the transfer.
  6. A transfer of the transferable interest of a partner in the limited partnership in violation of a restriction on transfer contained in the partnership agreement is ineffective as to a person having notice of the restriction at the time of transfer.
  7. A transferee that becomes a partner with respect to a transferable interest is liable for the obligations of the transferor under sections 45-10.2-47 and 45-10.2-54. However, the transferee is not obligated for liabilities unknown to the transferee at the time the transferee became a partner.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-64. (703) Charging order.

  1. On application by a judgment creditor of a partner or of a partner’s transferee, and following notice to the partnership of the application, a court of competent jurisdiction may enter a charging order against the transferable interest of the judgment debtor for the unsatisfied amount of the judgment.
  2. A charging order constitutes a lien on the transferable interest of the judgment debtor and requires the partnership to pay to the person to which the charging order was issued any distribution that otherwise would be paid to the judgment debtor.
  3. The partner or transferee having a transferable interest subject to a charging order may extinguish the charging order by satisfying the judgment and filing a certified copy of the satisfaction with the court that issued the charging order.
  4. A partnership or partner having any transferable interest not subject to the charging order may pay the full amount due under the judgment to the judgment creditor and succeed to the rights of the judgment creditor, including the charging order.
  5. This chapter does not deprive any partner or transferee of the benefit of any exemption laws applicable to the transferable interest of the partner or transferee.
  6. This section provides the exclusive remedy by which a person seeking to enforce a judgment against a partner or transferee may satisfy, in the capacity of a judgment creditor, the judgment from the transferable interest of the judgment debtor.
    1. No other remedy, including foreclosure of the transferable interest or a court order for directions, accounts, and inquiries the debtor partner may have made, is available to the judgment creditor attempting to satisfy the judgment from the judgment debtor’s interest in the partnership.
    2. No creditor of a partner or transferee has a right to obtain possession or otherwise exercise legal or equitable remedies with respect to property of the partnership.

Source:

S.L. 2005, ch. 384, § 6; 2009, ch. 106, § 64; 2017, ch. 82, § 7, effective August 1, 2017.

45-10.2-65. (704) Power of estate of deceased partner.

If a partner dies, then the personal representative or other legal representative of the deceased partner may exercise the rights of a transferee as provided in section 45-10.2-63 and, for the purposes of settling the estate, may exercise the rights of a current limited partner under section 45-10.2-34.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-66. (801) Nonjudicial dissolution.

Except as otherwise provided in section 45-10.2-67, a limited partnership is dissolved, and its activities must be wound up, only upon the occurrence of any of the following:

  1. The happening of an event specified in the partnership agreement;
  2. The consent of all general partners and of limited partners owning a majority of the rights to receive distributions as limited partners at the time the consent is to be effective;
  3. After the dissociation of a person as a general partner:
    1. If the limited partnership has at least one remaining general partner, then the consent to dissolve the limited partnership given within ninety days after the dissociation by partners owning a majority of the rights to receive distributions as partners at the time the consent is to be effective; or
    2. If the limited partnership does not have a remaining general partner, then the passage of ninety days after the dissociation unless before the end of the period:
      1. Consent to continue the activities of the limited partnership and admit at least one general partner is given by limited partners owning a majority of the rights to receive distributions as limited partners at the time the consent is to be effective; and
      2. At least one person is admitted as a general partner in accordance with the consent;
  4. The passage of ninety days after the dissociation of the last limited partner of the limited partnership, unless before the end of the period the limited partnership admits at least one limited partner; or
  5. The issuing and filing of a notice of dissolution by the secretary of state under subsection 5 of section 45-10.2-108.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-67. (802) Judicial dissolution.

On application by a partner the district court may order dissolution of a limited partnership if it is not reasonably practicable to carry on the activities of the limited partnership in conformity with the partnership agreement.

Source:

S.L. 2005, ch. 384, § 6.

Collateral References.

Inability of partnership to operate at profit as justification for court-ordered dissolution, 20 A.L.R.4th 122.

45-10.2-68. (803) Winding up.

  1. A limited partnership continues after dissolution only for the purpose of winding up its activities.
  2. In winding up its activities, the limited partnership:
    1. May:
      1. Amend its certificate of limited partnership to state that the limited partnership is dissolved;
      2. Preserve the limited partnership business or property as a going concern for a reasonable time;
      3. Prosecute and defend actions and proceedings, whether civil, criminal, or administrative;
      4. Transfer the property of the limited partnership;
      5. Settle disputes by mediation or arbitration;
      6. File a statement of termination as provided in section 45-10.2-69; and
      7. Perform other necessary acts; and
    2. Shall:
      1. Discharge the liabilities of the limited partnership;
      2. Settle and close the activities of the limited partnership; and
      3. Marshall and distribute the assets of the partnership.
  3. If a dissolved limited partnership does not have a general partner, then a person to wind up the activities of the dissolved limited partnership may be appointed by the consent of limited partners owning a majority of the rights to receive distributions as limited partners at the time the consent is to be effective. A person appointed under this subsection:
    1. Has the powers of a general partner under section 45-10.2-70; and
    2. Shall promptly amend the certificate of limited partnership to state:
      1. That the limited partnership does not have a general partner;
      2. The name of the person that has been appointed to wind up the limited partnership; and
      3. The street and mailing address of the person.
  4. On the application of any partner, the district court may order judicial supervision of the winding up, including the appointment of a person to wind up the activities of the dissolved limited partnership, if:
    1. A limited partnership does not have a general partner and within a reasonable time following the dissolution no person has been appointed pursuant to subsection 3; or
    2. The applicant establishes other good cause.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-69. (203) Statement of termination.

A dissolved limited partnership that has completed winding up may deliver to the secretary of state for filing a statement of termination that states:

  1. The name of the limited partnership; and
  2. Any other information as determined by the general partners filing the statement or by a person appointed pursuant to subsection 3 or 4 of section 45-10.2-68.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-70. (804) Power of general partner and person dissociated as general partner to bind partnership after dissolution.

  1. A limited partnership is bound by an act of a general partner after dissolution which:
    1. Is appropriate for winding up the activities of a limited partnership; or
    2. Would have bound the limited partnership under section 45-10.2-38 before dissolution, if, at the time the other party enters into the transaction, the other party does not have notice of the dissolution.
  2. A person dissociated as a general partner binds a limited partnership through an act occurring after dissolution if:
    1. At the time the other party enters into the transaction:
      1. Less than two years have passed since the dissociation; and
      2. The other party does not have notice of the dissociation and reasonably believes that the person is a general partner; and
    2. The act:
      1. Is appropriate for winding up the activities of the limited partnership; or
      2. Would have bound the limited partnership under section 45-10.2-38 before dissolution and at the time the other party enters into the transaction the other party does not have notice of the dissolution.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-71. (805) Liability after dissolution of general partner and person dissociated as general partner to limited partnership, other general partners, and persons dissociated as general partner.

  1. If a general partner having knowledge of the dissolution causes a limited partnership to incur an obligation under subsection 1 of section 45-10.2-70 by an act that is not appropriate for winding up the activities of the partnership, then the general partner is liable:
    1. To the limited partnership for any damage caused to the limited partnership arising from the obligation; and
    2. If another general partner or a person dissociated as a general partner is liable for the obligation, then to that other general partner or person for any damage caused to that other general partner or person arising from the liability.
  2. If a person dissociated as a general partner causes a limited partnership to incur an obligation under subsection 2 of section 45-10.2-70, then the person is liable:
    1. To the limited partnership for any damage caused to the limited partnership arising from the obligation; and
    2. If a general partner or another person dissociated as a general partner is liable for the obligation, then to the general partner or other person for any damage caused to the general partner or other person arising from the liability.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-72. (806) Known claims against dissolved limited partnership.

  1. A dissolved limited partnership may dispose of the known claims against it by following the procedure described in subsection 2.
  2. A dissolved limited partnership may notify its known claimants of the dissolution in a record. The notice must:
    1. Specify the information required to be included in a claim;
    2. Provide a mailing address to which the claim is to be sent;
    3. State the deadline for receipt of the claim, which may not be less than one hundred twenty days after the date the notice is received by the claimant;
    4. State that the claim will be barred if not received by the deadline; and
    5. Unless the limited partnership has been at each moment during its existence a limited liability limited partnership, state that the barring of a claim against the limited partnership will also bar any corresponding claim against any general partner or person dissociated as a general partner which is based on section 45-10.2-40.
  3. A claim against a dissolved limited partnership is barred if the requirements of subsection 2 are met and:
    1. The claim is not received by the specified deadline; or
    2. In the case of a claim that is timely received but rejected by the dissolved limited partnership, the claimant does not commence an action to enforce the claim against the limited partnership within ninety days after the receipt of the notice of the rejection.
  4. This section does not apply to a claim based on an event occurring after the effective date of dissolution or a liability that is contingent on that date.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-73. (807) Other claims against dissolved limited partnerships.

  1. A dissolved limited partnership may publish notice of its dissolution and request persons having claims against the limited partnership to present them in accordance with the notice.
  2. The notice must:
    1. Be published at least once in a newspaper of general circulation in the county in which the principal executive office of the dissolved limited partnership is located or, if it has none in this state, in the county in which the principal executive office of the limited partnership is or was last located;
    2. Describe the information required to be contained in a claim and provide a mailing address to which the claim is to be sent;
    3. State that a claim against the limited partnership is barred unless an action to enforce the claim is commenced within five years after publication of the notice; and
    4. Unless the limited partnership has been at each moment during its existence a limited liability limited partnership under chapter 45-23, state that the barring of a claim against the limited partnership will also bar any corresponding claim against any general partner or person dissociated as a general partner which is based on section 45-10.2-40.
  3. If a dissolved limited partnership publishes a notice in accordance with subsection 2, then the claim of each of the following claimants is barred unless the claimant commences an action to enforce the claim against the dissolved limited partnership within five years after the publication date of the notice:
    1. A claimant that did not receive notice in a record under section 45-10.2-72;
    2. A claimant whose claim was timely sent to the dissolved limited partnership but not acted on; and
    3. A claimant whose claim is contingent or based on an event occurring after the effective date of dissolution.
  4. A claim not barred under this section may be enforced:
    1. Against the dissolved limited partnership, to the extent of its undistributed assets;
    2. If the assets have been distributed in liquidation, then against a partner or transferee to the extent of the proportionate share of the claim of that person or the assets of the limited partnership distributed to the partner or transferee in liquidation, whichever is less, but the total liability of a person for all claims under this subdivision does not exceed the total amount of assets distributed to the person as part of the winding up of the dissolved limited partnership; or
    3. Against any person liable on the claim under section 45-10.2-40.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-74. (808) Liability of general partner and person dissociated as general partner when claim against limited partnership barred.

If a claim against a dissolved limited partnership is barred under section 45-10.2-72 or 45-10.2-73, then any corresponding claim under section 45-10.2-40 is also barred.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-75. (812) Disposition of assets — When contributions required.

  1. In winding up the activities of a limited partnership, the assets of the limited partnership, including the contributions required by this section, must be applied to satisfy the obligations to creditors of the limited partnership, including, to the extent permitted by law, partners that are creditors.
  2. Any surplus remaining after the limited partnership complies with subsection 1 must be paid in cash as a distribution.
  3. If assets of a limited partnership are insufficient to satisfy all of its obligations under subsection 1, then with respect to each unsatisfied obligation incurred when the limited partnership was not a limited liability limited partnership under chapter 45-23, the following rules apply:
    1. Each person that was a general partner when the obligation was incurred and that has not been released from the obligation under section 45-10.2-61 shall contribute to the limited partnership for the purpose of enabling the limited partnership to satisfy the obligation. The contribution due from each of those persons is in proportion to the right to receive distributions in the capacity of general partner in effect for each of those persons when the obligation was incurred.
    2. If a person does not contribute the full amount required under subdivision a with respect to an unsatisfied obligation of the limited partnership, then the other persons required to contribute by subdivision a on account of the obligation shall contribute the additional amount necessary to discharge the obligation. The additional contribution due from each of those other persons is in proportion to the right to receive distributions in the capacity of general partner in effect for each of those other persons when the obligation was incurred.
    3. If a person does not make the additional contribution required by subdivision b, then further additional contributions are determined and due in the same manner as provided in subdivision b.
  4. A person that makes an additional contribution under subdivision b or c of subsection 3 may recover from any person whose failure to contribute under subdivision a or b of subsection 3 necessitated the additional contribution.
    1. A person may not recover under this subsection more than the amount additionally contributed.
    2. The liability of a person under this subsection may not exceed the amount the person failed to contribute.
  5. The estate of a deceased individual is liable for the obligations of the person under this section.
  6. An assignee for the benefit of creditors of a limited partnership or a partner, or a person appointed by a court to represent creditors of a limited partnership or a partner, may enforce the obligation to contribute by a person under subsection 3.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-76. (901) Foreign limited partnership — Governing law.

  1. The laws of the state or other jurisdiction under which a foreign limited partnership is organized govern relations among the partners of the foreign limited partnership and between the partners and the foreign limited partnership and the liability of partners as partners for an obligation of the foreign limited partnership.
  2. A foreign limited partnership may not be denied a certificate of authority by reason of any difference between the laws of the jurisdiction under which the foreign limited partnership is organized and the laws of this state.
  3. A certificate of authority does not authorize a foreign limited partnership to engage in any business or exercise any power that a limited partnership may not engage in or exercise in this state.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-77. (905) Foreign limited partnership — Name.

  1. A foreign limited partnership whose name does not comply with section 45-10.2-10 may not obtain a certificate of authority until it adopts, for the purpose of transacting business in this state, an alternate name that complies with section 45-10.2-10. A foreign limited partnership that adopts an alternate name under this subsection and then obtains a certificate of authority with the name shall comply with chapter 45-11. After obtaining a certificate of authority with an alternate name, a foreign limited partnership shall transact business in this state under the alternate name unless the foreign limited partnership is authorized under section 45-10.2-10 to transact business in this state under another name.
  2. If a foreign limited partnership authorized to transact business in this state changes its name to one that does not comply with section 45-10.2-10, then it may not thereafter transact business in this state until it complies with subsection 1 and obtains an amended certificate of authority.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-78. Foreign limited partnership — Admission of foreign limited partnership — Transacting business — Obtaining licenses and permits.

A foreign limited partnership may not:

  1. Transact business in this state or obtain any license or permit required by this state until the foreign limited partnership obtains a certificate of authority from the secretary of state.
  2. Transact in this state any business that is prohibited to a limited partnership organized under this chapter.
  3. Be denied a certificate of authority because the laws of the jurisdiction of origin of the foreign limited partnership differ from the laws of this state.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-79. (902) Foreign limited partnership — Application for certificate of authority.

  1. A foreign limited partnership may apply for a certificate of authority to transact business or conduct activities in this state by delivering an application to the secretary of state for filing. The application must state:
    1. The name of the foreign limited partnership and, if the name does not comply with section 45-10.2-10, then an alternate name adopted pursuant to subsection 1 of section 45-10.2-77;
    2. The name of the state or other jurisdiction under whose law the foreign limited partnership is organized;
    3. The general character of the business the foreign limited partnership proposes to transact in this state;
    4. The street and mailing address of the principal executive office of the foreign limited partnership;
    5. The name of the registered agent as provided in chapter 10-01.1 and, if a noncommercial registered agent, the address of that noncommercial registered agent in this state;
    6. The name, street address, and mailing address of each general partner of the foreign limited partnership; and
    7. Whether the foreign limited partnership is a foreign limited liability limited partnership.
  2. With the completed application, the foreign limited partnership shall deliver a certificate of existence or a record of similar import signed by the secretary of state or other official having custody of the publicly filed records of the foreign limited partnership in the state or other jurisdiction under whose law the foreign limited partnership is organized.

Source:

S.L. 2005, ch. 384, § 6; 2007, ch. 99, § 62.

45-10.2-80. (904) Foreign limited partnership — Filing of certificate of authority application.

If the secretary of state finds an application for a certificate of authority conforms to law and all fees have been paid, then the secretary of state shall:

  1. Endorse on the application the word “filed” and the date of filing; and
  2. File the application and the certificate of good standing or certificate of existence.

Source:

S.L. 2005, ch. 384, § 6; 2007, ch. 99, § 63.

45-10.2-81. Foreign limited partnership — Amendments to the certificate of authority.

If any statement in the application for a certificate of authority by a foreign limited partnership is false when made or becomes false due to changed circumstances, or if the foreign limited partnership changes its name or purposes sought in this state, then the foreign limited partnership shall file with the secretary of state an application for an amended certificate of authority signed by at least one general partner correcting the statement and, in the case of a change in the name of the foreign limited partnership, a certificate to that effect authenticated by the proper officer of the jurisdiction under the laws of which the foreign limited partnership is organized.

  1. In the case of a dissolution, a foreign limited partnership need not file an application for an amended certificate of authority but shall promptly file with the secretary of state a certificate to that effect authenticated by the proper officer of the jurisdiction under the laws of which the foreign limited partnership is organized.
  2. A foreign limited partnership that changes its name and applies for an amended certificate of authority and which is the owner of a service mark, trademark, or trade name, is a general partner named in a fictitious name certificate, is a general partner in another limited partnership or limited liability limited partnership, or is a managing partner in a limited liability partnership that is on file with the secretary of state, shall change the name of the foreign limited partnership in each of the foregoing registrations that is applicable when the foreign limited partnership files an application for an amended certificate of authority.
  3. A foreign limited partnership shall report any change of address of the principal executive office to the secretary of state and need not file an application for amended certificate of authority.

Source:

S.L. 2005, ch. 384, § 6; 2007, ch. 101, § 71; 2009, ch. 106, § 65.

45-10.2-82. Foreign limited partnership — Registered agent — Registered office.

A foreign limited partnership authorized to transact business in this state shall continuously maintain a registered agent as provided in chapter 10-01.1 and, if a noncommercial registered agent, the address of that noncommercial registered agent in this state.

Source:

S.L. 2005, ch. 384, § 6; 2007, ch. 99, § 64.

45-10.2-83. Foreign limited partnership — Merger of foreign limited partnership authorized to transact business in this state.

If a foreign limited partnership authorized to transact business in this state is a party to a statutory merger permitted by the laws of the jurisdiction under which the foreign limited partnership is organized, and the foreign limited partnership is not the surviving organization, then the surviving organization shall, within thirty days after the merger becomes effective, file with the secretary of state a certified statement of merger duly authenticated by the proper officer of the state or country where the statutory merger was effected. Any foreign organization that is the surviving organization in a merger and which will continue to transact business in this state shall procure a certificate of authority if not previously authorized to transact business.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-84. Foreign limited partnership — Conversion of foreign limited partnership authorized to transact business in this state.

If a foreign limited partnership authorized to transact business in this state converts to another organization permitted by the laws of the jurisdiction under which the foreign limited partnership is organized, then the newly created organization resulting from the conversion shall, within thirty days after the conversion becomes effective, file with the secretary of state a certified statement of conversion duly authenticated by the proper officer of the jurisdiction in which the statutory conversion was effected. Any foreign organization that is the converted organization in a conversion and which will continue to transact business in this state shall obtain a certificate of authority or applicable registration in accordance with the North Dakota laws applicable to the converted organization.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-85. Foreign limited partnership — Cancellation of certificate of authority — Effect of failure to have certificate.

  1. In order to cancel its certificate of authority to transact business in this state, a foreign limited partnership must deliver to the secretary of state for filing:
    1. A certified notice of cancellation duly authenticated by the proper officer of the state or country where the cancellation was effected;
    2. A certified statement of dissolution duly authenticated by the proper officer of the state or country where the dissolution was effected; or
    3. A statement of withdrawal signed by a general partner.
  2. A foreign limited partnership transacting business in this state may not maintain an action or proceeding in this state unless it has a certificate of authority to transact business in this state.
  3. The failure of a foreign limited partnership to have a certificate of authority to transact business in this state does not impair the validity of a contract or act of the foreign limited partnership or prevent the foreign limited partnership from defending an action or proceeding in this state.
  4. A partner of a foreign limited partnership is not liable for the obligations of the foreign limited partnership solely by reason that the foreign limited partnership has transacted business in this state without a certificate of authority.
  5. If a foreign limited partnership transacts business in this state without a certificate of authority or cancels its certificate of authority, then it appoints the secretary of state as its agent for service of process for rights of action arising out of the transaction of business in this state.
  6. A foreign limited partnership that transacts business in this state without a certificate of authority is liable to the state for the years or parts of years during which the foreign limited partnership transacted business in this state without the certificate of authority in an amount equal to all fees that would have been imposed by this chapter upon that foreign limited partnership had the foreign limited partnership duly obtained a certificate of authority, filed all reports required by this chapter, and paid all penalties imposed by this chapter. The attorney general shall bring proceedings to recover all amounts due this state under this section.
  7. A foreign limited partnership that transacts business in this state without a certificate of authority is subject to a civil penalty, payable to the state, not to exceed five thousand dollars. Each general partner and each agent who authorizes, directs, or participates in the transaction of business in this state on behalf of a foreign limited partnership that has not obtained a certificate of authority is subject to a civil penalty, payable to the state, not to exceed one thousand dollars.
  8. The civil penalties set forth in subsection 7 may be recovered in an action brought within the district court of Burleigh County by the attorney general. Upon a finding by the court that a foreign limited partnership or any of the general partners or agents of the foreign limited partnership have transacted business in this state in violation of this chapter, the court shall issue, in addition to the imposition of a civil penalty, an injunction restraining the further transaction of the business of the foreign limited partnership and further exercise of any rights and privileges by the foreign limited partnership in this state. The foreign limited partnership must be enjoined from transacting business in this state until all civil penalties plus any interest and court costs that the court may assess have been paid and until the foreign limited partnership has otherwise complied with the provisions of this chapter.

The certificate is canceled when the notice of cancellation, statement of dissolution, or statement of withdrawal becomes effective under section 45-10.2-27.

Source:

S.L. 2005, ch. 384, § 6; 2011, ch. 87, § 64.

45-10.2-86. (903) Foreign limited partnership — Activities not constituting transacting business.

  1. Activities of a foreign limited partnership which do not constitute transacting business in this state within the meaning of this chapter include:
    1. Maintaining, defending, and settling an action or proceeding;
    2. Holding a meeting of its partners or carrying on any other activity concerning its internal affairs;
    3. Maintaining accounts in financial institutions;
    4. Maintaining offices or agencies for the transfer, exchange, and registration of the securities of the foreign limited partnership or maintaining trustees or depositories with respect to those securities;
    5. Selling through independent contractors;
    6. Soliciting or obtaining orders, whether by mail or electronic means or through employees or agents or otherwise, if the orders require acceptance outside this state before they become contracts;
    7. Creating or acquiring indebtedness, mortgages, or security interests in real or personal property;
    8. Securing or collecting debts or enforcing mortgages or other security interests in property securing the debts, and holding, protecting, and maintaining property so acquired;
    9. Conducting an isolated transaction that is completed within thirty days and is not one in the course of similar transactions of a like manner; and
    10. Transacting business in interstate commerce.
  2. For purposes of this section, the ownership in this state of income-producing real property or tangible personal property, other than property excluded under subsection 1, constitutes transacting business in this state.
  3. This section does not apply in determining the contacts or activities that may subject a foreign limited partnership to service of process, taxation, or regulation under any other law of this state.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-87. Foreign limited partnership — Revocation of certificate of authority. [Repealed]

Source:

S.L. 2005, ch. 384, § 6; 2007, ch. 99, § 65; 2011, ch. 87, § 65; repealed by 2015, ch. 86, § 24, effective July 1, 2015.

45-10.2-88. (908) Foreign limited partnership — Action by attorney general.

The attorney general may maintain an action to restrain a foreign limited partnership from transacting business in this state in violation of this chapter.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-89. (1001) Direct action by partner.

  1. Subject to subsection 2, a partner may maintain a direct action against the limited partnership or another partner for legal or equitable relief, with or without an accounting to the activities of the partnership, to enforce the rights and otherwise protect the interests of the partner, including rights and interests under the partnership agreement of this chapter or arising independently of the partnership relationship.
  2. A partner commencing a direct action under this section is required to plead and prove an actual or threatened injury that is not solely the result of an injury suffered or threatened to be suffered by the limited partnership.
  3. The accrual of, and any time limitation on, a right of action for a remedy under this section is governed by other law. A right to an accounting upon a dissolution and winding up does not revive a claim barred by law.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-90. (1002) Derivative action.

A partner may maintain a derivative action to enforce a right of a limited partnership if:

  1. The partner first makes a demand on the general partners, requesting that they cause the limited partnership to bring an action to enforce the right, and the general partners do not bring the action within a reasonable time; or
  2. A demand would be futile.

Source:

S.L. 2005, ch. 384, § 6.

Collateral References.

Right of limited partner to maintain derivative action on behalf of partnership, 26 A.L.R.4th 264.

45-10.2-91. (1003) Proper plaintiff.

A derivative action may be maintained only by a person that is a partner at the time the action is commenced and:

  1. That was a partner when the conduct giving rise to the action occurred; or
  2. Whose status as a partner devolved upon the person by operation of law or pursuant to the terms of the partnership agreement from a person that was a partner at the time of the conduct.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-92. (1004) Pleading.

In a derivative action, the complaint must state with particularity:

  1. The date and content of the demand of the plaintiff and the response to the demand by the general partners; or
  2. Why demand should be excused as futile.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-93. (1005) Proceeds and expenses.

  1. Except as otherwise provided in subsection 2:
    1. Any proceeds or other benefits of a derivative action, whether by judgment, compromise, or settlement, belong to the limited partnership and not to the derivative plaintiff; and
    2. If the derivative plaintiff receives any proceeds, then the derivative plaintiff shall immediately remit them to the limited partnership.
  2. If a derivative action is successful in whole or in part, then the court may award the plaintiff reasonable expenses, including reasonable fees for services of an attorney, from the recovery of the limited partnership.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-94. (1102) Conversion.

  1. An organization other than a limited partnership may convert to a limited partnership, and a limited partnership may convert to another organization other than a general partnership pursuant to this section and sections 45-10.2-95 through 45-10.2-99 and a plan of conversion, if:
    1. The governing statute of the other organization authorizes the conversion;
    2. The conversion is not prohibited by the law of the jurisdiction that enacted the governing statute; and
    3. The other organization complies with its governing statute in effecting the conversion.
  2. For the purposes of sections 45-10.2-94 through 45-10.2-99, unless the context clearly indicates a different meaning is intended:
    1. “Certificate of creation” means:
      1. A certificate of incorporation, if the converted organization is a corporation deemed to be incorporated under chapter 10-19.1;
      2. A certificate of organization, if the converted organization is a limited liability company deemed to be organized under chapter 10-32.1;
      3. A certificate of limited partnership, if the converted organization is a limited partnership deemed to be formed under this chapter;
      4. The filed registration if the converting organization is a limited liability partnership deemed to be established under chapter 45-22; or
      5. A certificate of limited liability limited partnership, if the converted organization is a limited liability limited partnership deemed to be formed under chapter 45-23.
    2. “Date of origin” means the date on which:
      1. A corporation that is:
        1. The converting organization was incorporated; or
        2. The converted organization is deemed to be incorporated;
      2. A limited liability company that is:
        1. The converting organization was organized; or
        2. The converted organization is deemed to be organized;
      3. A general partnership that is the converting organization was formed;
      4. A limited partnership that is:
        1. The converting organization was formed; or
        2. The converted organization is deemed to be formed;
      5. A limited liability partnership that is:
        1. The converting organization was formed; or
        2. The converted organization is deemed to be formed; and
      6. A limited liability limited partnership that is:
        1. The converting organization was formed; or
        2. The converted organization is deemed to be formed.
    3. “Filed registration” means the registration of a limited liability partnership that has been filed with the secretary of state.
    4. “General partnership” shall mean an organization formed under chapters 45-13 through 45-21.
    5. “Organizational records” means for an organization that is:
      1. A corporation, its articles of incorporation and bylaws;
      2. A limited liability company, its articles of organization, operating agreement or bylaws, and any member-control agreement;
      3. A limited partnership, its partnership agreement;
      4. A limited liability partnership, its partnership agreement; or
      5. A limited liability limited partnership, its partnership agreement.
    6. “Originating record” means for an organization that is:
      1. A corporation, its articles of incorporation;
      2. A limited liability company, its articles of organization;
      3. A limited partnership, its certificate of limited partnership;
      4. A limited liability partnership, its registration; or
      5. A limited liability limited partnership, its certificate of limited liability limited partnership.

Source:

S.L. 2005, ch. 384, § 6; 2015, ch. 87, § 29, effective July 1, 2015.

45-10.2-95. Plan of conversion.

A plan of conversion must be in a record and must contain:

  1. The name and form of the converting organization before conversion;
  2. The name and form of the converted organization after conversion;
  3. The terms and conditions of the conversion;
  4. The manner and basis for converting each ownership interest in the converting organization into ownership interests in the converted organization, or in whole or in part, into money or other property;
  5. The organizational records of the converted organization; and
  6. Any other provisions with respect to the proposed conversion that are deemed to be necessary or desirable.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-96. Plan of conversion approval and amendment.

  1. If the converting organization is a limited partnership, then:
    1. Subject to section 45-10.2-104, a plan of conversion must be consented to by all of the partners of a converting limited partnership.
    2. Subject to section 45-10.2-104 and any contractual rights, after a conversion is approved, and at any time before the effective date of the plan, a converting limited partnership may amend the planned conversion:
      1. As provided in the plan; and
      2. Except as provided otherwise by the plan, by the same consent as was required to approve the plan.
  2. If the converting organization is not a limited partnership, then the approval and the amendment of the plan of conversion must comply with its governing statute in effecting the conversion.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-97. Articles of conversion.

  1. Upon receiving the approval required by section 45-10.2-96, articles of conversion must be prepared in a record that must contain:
    1. A statement that the converting organization is being converted into another organization, including:
      1. The name of the converting organization immediately before the filing of the articles of conversion;
      2. The name to which the name of the converting organization is to be changed, which must be a name that satisfies the laws applicable to the converted organization;
      3. The form of organization that the converted organization will be; and
      4. The jurisdiction of the governing statute of the converted organization;
    2. A statement that the plan of conversion has been approved by the converting organization as provided in section 45-10.2-96;
    3. A statement that the plan of conversion has been approved as required by the governing statute of the converted organization;
    4. The plan of conversion without the organizational records;
    5. A copy of the originating record of the converted organization; and
    6. If the converted organization is a foreign organization not authorized to transact business or conduct activities in this state, then the street and mailing address of an office which the secretary of state may use for the purposes of subsection 4 of section 45-10.2-99.
  2. The articles of conversion must be signed on behalf of the converting organization and filed with the secretary of state.
    1. If the converted organization is a domestic organization, then:
      1. The filing of the articles of conversion must also include the filing with the secretary of state of the originating record of the converted organization.
      2. Upon both the articles of conversion and the originating record of the converted organization being filed with the secretary of state, the secretary of state shall issue a certificate of conversion and the appropriate certificate of creation to the converted organization or its legal representative.
    2. If the converted organization is a foreign organization:
      1. That is transacting business or conducting activities in this state, then:
        1. The filing of the articles of conversion must include the filing with the secretary of state of an application for a certificate of authority by the converted organization.
        2. Upon both the articles of conversion and the application for a certificate of authority by the converted organization being filed with the secretary of state, the secretary of state shall issue a certificate of conversion and the appropriate certificate of authority to the converted organization or the legal representative.
      2. That is not transacting business or conducting activities in this state, then upon the articles of conversion being filed with the secretary of state, the secretary of state shall issue a certificate of conversion to the converted organization or its legal representative.
  3. A converting organization that is the owner of a service mark, trademark, or trade name, is a general partner named in a fictitious name certificate, or is a general partner in a limited partnership that is on file with the secretary of state must change or amend the name of the converting organization to the name of the converted organization in each registration when filing the articles of conversion.

Source:

S.L. 2005, ch. 384, § 6; 2009, ch. 106, § 66.

45-10.2-98. Abandonment of conversion.

  1. If the articles of conversion have not been filed with the secretary of state, and:
    1. If the converting organization is a limited partnership, then subject to section 45-10.2-104 and any contractual rights, after a conversion is approved, and at any time before the effective date of the plan, a converting limited partnership may abandon the planned conversion:
      1. As provided in the plan; and
      2. Except as provided otherwise by the plan, by the same consent as was required to approve the plan.
    2. If the converting organization is not a limited partnership, then the abandonment of the plan of conversion must comply with its governing statute.
  2. If articles of conversion have been filed with the secretary of state, but have not yet become effective, then the converting organization shall file with the secretary of state articles of abandonment that contain:
    1. The name of the converting organization;
    2. The provision of this section under which the plan is abandoned; and
    3. If the plan is abandoned:
      1. By the consent of all of the partners, then the text of the resolution abandoning the plan; or
      2. As provided in the plan, then a statement that the plan provides for abandonment and that all conditions for abandonment set forth in the plan are met.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-99. Effective date of conversion — Effect.

  1. A conversion is effective when the filing requirements of subsection 2 of section 45-10.2-97 have been fulfilled or on a later date specified in the articles of conversion.
  2. With respect to the effect of conversion on the converting organization and on the converted organization:
    1. An organization that has been converted as provided in sections 45-10.2-94 through 45-10.2-99 is for all purposes the same entity that existed before the conversion.
    2. Upon a conversion becoming effective:
      1. If the converted organization:
        1. Is a limited partnership, then the converted organization has all the rights, privileges, immunities, and powers, and is subject to all the duties and liabilities, of a limited partnership formed under this chapter; or
        2. Is not a limited partnership, then the converted organization has all the rights, privileges, immunities, and powers, and is subject to the duties and liabilities as provided in its governing statute;
      2. All property owned by the converting organization remains vested in the converted organization;
      3. All debts, liabilities, and other obligations of the converting organization continue as obligations of the converted organization;
      4. An action or proceeding pending by or against the converting organization may be continued as if the conversion had not occurred;
      5. Except as otherwise provided by other law, all rights, privileges, immunities, and powers of the converting organization remain vested in the converted organization;
      6. Except as otherwise provided in the plan of conversion, the terms and conditions of the plan of conversion take effect; and
      7. Except as otherwise agreed, the conversion does not dissolve a converting limited partnership for the purposes of sections 45-10.2-66 through 45-10.2-75.
  3. When a conversion becomes effective, each ownership interest in the converting organization is deemed to be converted into ownership interests in the converted organization or, in whole or in part, into money or other property to be received under the plan.
  4. A converted organization that is a foreign organization consents to the jurisdiction of the courts of this state to enforce any obligations owed by the converting limited partnership, if before the conversion the converting limited partnership was subject to suit in this state on the obligation. A converted organization that is a foreign organization and not authorized to transact business or conduct activities in this state appoints the secretary of state as its agent for service of process for purposes of enforcing an obligation under this subsection.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-100. (1106) Merger.

  1. A limited partnership may merge with one or more other constituent organizations pursuant to this section and sections 45-10.2-101 through 45-10.2-103 and a plan of merger, if:
    1. The governing statute of each of the other organizations authorizes the merger;
    2. The merger is not prohibited by the law of a jurisdiction that enacted any of those governing statutes; and
    3. Each of the other organizations complies with its governing statute in effecting the merger.
  2. For the purposes of sections 45-10.2-100 through 45-10.2-103, “originating record” means for an organization that is:
    1. A corporation, its articles of incorporation;
    2. A limited liability company, its articles of organization;
    3. A limited partnership, its certificate of limited partnership;
    4. A limited liability partnership, its registration; and
    5. A limited liability limited partnership, its certificate of limited liability limited partnership.
  3. A plan of merger must be in a record and must include:
    1. The name and form of each constituent organization;
    2. The name and form of the surviving organization and:
      1. If the surviving organization is to be created by the merger, then:
        1. A statement to that effect; and
        2. Its organizational record; or
      2. If the surviving organization is not to be created by the merger, then any amendments to be made to the organizational record of the surviving organization;
    3. The terms and conditions of the merger;
    4. The manner and basis for converting the interests in each constituent organization into any combination of money, interests in the surviving organization, and other consideration; and
    5. Any other provisions with respect to the proposed merger that are deemed to be necessary or desirable.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-101. (1107) Plan of merger approval — Amendment and abandonment.

  1. Subject to section 45-10.2-104, a plan of merger must be consented to by all the partners of a constituent limited partnership.
  2. Subject to section 45-10.2-104 and any contractual rights, after a merger is approved, and at any time before a filing is made under section 45-10.2-102, a constituent limited partnership may amend the plan or abandon the planned merger:
    1. As provided in the plan; and
    2. Except as prohibited by the plan, with the same consent as was required to approve the plan.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-102. (1108) Articles of merger.

  1. After each constituent organization has approved a merger, articles of merger must be signed on behalf of:
    1. Each pre-existing constituent limited partnership, by each general partner listed in the certificate of limited partnership; and
    2. Each other pre-existing constituent organization, by an authorized representative.
  2. The articles of merger must be accompanied by the plan of merger without organizational records and must include:
    1. With respect to each constituent organization:
      1. Its name;
      2. Its form;
      3. The jurisdiction of its governing statute;
      4. A statement that the merger complies with its governing statute; and
      5. Any additional information required by the governing statute of any constituent organization.
    2. With respect to the surviving organization:
      1. Its name;
      2. Its form;
      3. The jurisdiction of its governing statute;
      4. The date the merger is effective under its governing statute;
      5. If it is created by the merger, then:
        1. A statement to that effect; and
        2. The originating record that creates the organization;
      6. If it pre-exists the merger, then any amendments to its originating record provided for in the plan of merger; or
      7. If it is a foreign organization not authorized to transact business or conduct activities in this state, then the street and mailing address of an office that the secretary of state may use for the purposes of subsection 2 of section 45-10.2-103.
  3. The articles of merger must be filed in the office of the secretary of state.
  4. A merger becomes effective under this chapter:
    1. If the surviving organization is a limited partnership, upon the later of:
      1. Compliance with subsection 3; or
      2. Subject to subsection 3 of section 45-10.2-27, as specified in the articles of merger; or
    2. If the surviving organization is not a limited partnership, then as provided by the governing statute of the surviving organization.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-103. (1109) Effect of merger.

  1. When a merger becomes effective:
    1. The surviving organization continues or comes into existence;
    2. Each constituent organization that merges into the surviving organization ceases to exist as a separate entity;
    3. All property owned by each constituent organization that ceases to exist vests in the surviving organization;
    4. All debts, liabilities, and other obligations of each constituent organization that ceases to exist continue as obligations of the surviving organization;
    5. An action or proceeding pending by or against any constituent organization that ceases to exist may be continued by the surviving organization as if the merger had not occurred;
    6. Except as prohibited by other law, all of the rights, privileges, immunities, powers, and purposes of each constituent organization that ceases to exist vest in the surviving organization;
    7. Except as otherwise provided in the plan of merger, the terms and conditions of the plan of merger take effect;
    8. Except as otherwise agreed, if a constituent limited partnership ceases to exist, then the merger does not dissolve the limited partnership for the purposes of sections 45-10.2-66 through 45-10.2-75;
    9. If the surviving organization is created by the merger and:
      1. If it is a limited partnership, then the certificate of limited partnership becomes effective; or
      2. If it is an organization other than a limited partnership, then the organizational record that creates the organization becomes effective; and
    10. If the surviving organization pre-exists the merger, then any amendments provided for in the articles of merger for the organizational record that created the organization become effective.
  2. A surviving organization that is a foreign organization consents to the jurisdiction of the courts of this state to enforce any obligation owed by a constituent organization, if before the merger the constituent organization was subject to suit in this state on the obligation. A surviving organization that is a foreign organization and not authorized to transact business or conduct activities in this state appoints the secretary of state as its agent for service of process for the purposes of enforcing an obligation under this subsection.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-104. (1110) Restrictions on approval of conversions and mergers and on relinquishing limited liability limited partnership status.

  1. If a partner of a converting or constituent limited partnership will have personal liability with respect to a converted or surviving organization, then approval and amendment of a plan of conversion or merger are ineffective without the consent of the partner, unless:
    1. The partnership agreement of the limited partnership provides for the approval of the conversion or merger with the consent of fewer than all the partners; and
    2. The partner has consented to the provision of the partnership agreement.
  2. An amendment to a certificate of limited partnership which converts the limited partnership to a limited liability limited partnership is ineffective without the consent of each general partner unless:
    1. The partnership agreement of the limited partnership provides for the conversion with the consent of less than all the general partners; and
    2. Each general partner that does not consent to the amendment of conversion has consented to that provision of the partnership agreement.
  3. A partner does not give the consent required by subsection 1 or 2 merely by consenting to a provision of the partnership agreement which permits the partnership agreement to be amended with the consent of fewer than all the partners.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-105. (1111) Liability of general partner after conversion or merger.

  1. A conversion or merger under this chapter does not discharge any liability under sections 45-10.2-40 and 45-10.2-61 of a person that was a general partner in or dissociated as a general partner from a converting or constituent limited partnership, but:
    1. The provisions of this chapter pertaining to the collection or discharge of the liability continue to apply to the liability;
    2. For the purposes of applying those provisions, the converted or surviving organization is deemed to be the converting or constituent limited partnership; and
    3. If a person is required to pay any amount under this subsection, then:
      1. The person has a right of contribution from each other person that was liable as a general partner under section 45-10.2-40 when the obligation was incurred and has not been released from the obligation under section 45-10.2-61; and
      2. The contribution due from each of those persons is in proportion to the right to receive distributions in the capacity of general partner in effect for each of those persons when the obligations were incurred.
  2. In addition to any other liability provided by law:
    1. A person that immediately before a conversion or merger became effective was a general partner in a converting or constituent limited partnership that was not a limited liability limited partnership is personally liable for each obligation of the converted or surviving organization arising from a transaction with a third party after the conversion or merger becomes effective, if, at the time the third party enters into the transaction, the third party:
      1. Does not have notice of the conversion or merger; and
      2. Reasonably believes that:
        1. The converted or surviving organization or business is the converting or constituent limited partnership;
        2. The converting or constituent limited partnership is not a limited liability limited partnership; and
        3. The person is a general partner in the converting or constituent limited partnership; and
    2. A person that was dissociated as a general partner from a converting or constituent limited partnership before the conversion or merger became effective is personally liable for each obligation of the converted or surviving organization arising from a transaction with a third party after the conversion or merger becomes effective, if:
      1. Immediately before the conversion or merger became effective the converting or surviving limited partnership was not a limited liability limited partnership; and
      2. At the time the third party enters into the transaction less than two years have passed since the person dissociated as a general partner and the third party:
        1. Does not have notice of the dissociation;
        2. Does not have notice of the conversion or merger; and
        3. Reasonably believes that:
          1. The converted or surviving organization or business is the converting or constituent limited partnership;
          2. The converting or constituent limited partnership is not a limited liability limited partnership; and
          3. The person is a general partner in the converting or constituent limited partnership.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-106. (1112) Power of general partners and persons dissociated as general partners to bind organization after conversion or merger.

  1. An act of a person that immediately before a conversion or merger became effective was a general partner in a converting or constituent limited partnership binds the converted or surviving organization after the conversion or merger becomes effective, if:
    1. Before the conversion or merger became effective, the act would have bound the converting or constituent limited partnership under section 45-10.2-38; and
    2. At the time the third party enters into the transaction, the third party:
      1. Does not have notice of the conversion or merger; and
      2. Reasonably believes that:
        1. The converted or surviving organization or business is the converting or constituent limited partnership; and
        2. The person is a general partner in the converting or constituent limited partnership.
  2. An act of a person that before a conversion or merger became effective was dissociated as a general partner from a converting or constituent limited partnership binds the converted or surviving organization after the conversion or merger becomes effective, if:
    1. Before the conversion or merger became effective, the act would have bound the converting or constituent limited partnership under section 45-10.2-38 if the person had been a general partner; and
    2. At the time the third party enters into the transaction, less than two years have passed since the person dissociated as a general partner and the third party:
      1. Does not have notice of the dissociation;
      2. Does not have notice of the conversion or merger; and
      3. Reasonably believes that:
        1. The converted or surviving organization or business is the converting or constituent limited partnership; and
        2. The person is a general partner in the converting or constituent limited partnership.
  3. If a person having knowledge of the conversion or merger causes a converted or surviving organization to incur an obligation under subsection 1 or 2, then the person is liable:
    1. To the converted or surviving organization for any damage caused to the organization arising from the obligation; and
    2. If another person is liable for the obligation, then to that other person for any damage caused to that other person arising from the liability.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-107. Service of process on a limited partnership or foreign limited partnership and on nonresident general partners.

Any process, notice, or demand required or permitted by law to be served on the limited partnership, foreign limited partnership, or general partner may be served as provided in section 10-01.1-13.

Source:

S.L. 2005, ch. 384, § 6; 2007, ch. 99, § 66.

45-10.2-108. Secretary of state — Annual report of limited partnership and foreign limited partnership.

  1. Each limited partnership, and each foreign limited partnership authorized to transact business in this state, shall file, within the time provided by subsection 3, an annual report setting forth:
    1. The name of the limited partnership or foreign limited partnership and the jurisdiction of origin.
    2. The address of the registered office of the limited partnership or foreign limited partnership in this state and the name of the registered agent of the limited partnership or foreign limited partnership in this state at that address.
    3. The address of the principal executive office of the limited partnership or foreign limited partnership.
    4. A brief statement of the character of the business in which the limited partnership or foreign limited partnership is actually engaged in this state.
    5. The name and respective address of every general partner of the limited partnership or foreign limited partnership.
  2. The annual report must be submitted on forms prescribed by the secretary of state. The information provided in the annual report must be accurate as of the time of filing the report. The annual report must be signed as provided in subsection 40 of section 45-10.2-02 or a resolution approved by the affirmative vote of the required proportion or number of partners. If the limited partnership or foreign limited partnership is in the hands of a receiver or trustee, the annual report must be signed on behalf of the limited partnership or foreign limited partnership by the receiver or trustee. The secretary of state may destroy any annual reports provided for in this section after the annual report is on file for six years.
  3. Except for the first annual report, the annual report of a limited partnership or foreign limited partnership must be delivered to the secretary of state before April first of each year. The first annual report of a limited partnership must be delivered before April first of the year following the calendar year of the effective date of the limited partnership certificate and the first annual report of a foreign limited partnership must be delivered before April first of the year following the calendar year in which the certificate of authority was filed by the secretary of state. The secretary of state shall file the report if the report conforms to the requirements of subsection 2.
    1. If the report does not conform, then the report must be returned to the limited partnership or foreign limited partnership for any necessary corrections.
    2. If the report is filed before the deadlines provided in this subsection, then penalties for the failure to file a report within the time provided do not apply if the report is corrected to conform to the requirements of subsection 2 and returned to the secretary of state within thirty days after the annual report was returned by the secretary of state for correction.
  4. After the date established under subsection 3, the secretary of state shall notify any limited partnership or foreign limited partnership failing to file an annual report that the certificate of limited partnership or certificate of authority of a foreign limited partnership is not in good standing and that the certificate of the limited partnership or the certificate of authority of the foreign limited partnership may be dissolved or revoked pursuant to subsection 5.
    1. The secretary of state must mail notice of dissolution or revocation to the last registered agent at the last registered office.
    2. If the limited partnership or foreign limited partnership files an annual report after the notice is mailed, then the secretary of state will restore the certificate or certificate of authority of the limited partnership or foreign limited partnership to good standing.
  5. A limited partnership that does not file an annual report, within six months after the date established in subsection 3, ceases to exist and is considered involuntarily dissolved by operation of law.
    1. The secretary of state shall note the dissolution of the certificate of limited partnership on the records of the secretary of state and shall give notice of the action to the dissolved limited partnership.
    2. Notice by the secretary of state must be mailed to the last registered agent at the last registered office of the limited partnership.
  6. A foreign limited partnership that does not file an annual report, within six months after the date established by subsection 3, forfeits the right to transact business in this state.
    1. The secretary of state shall note the revocation of the certificate of authority of the foreign limited partnership on the records of the secretary of state and shall give notice of the action to the foreign limited partnership.
    2. Notice by the secretary of state must be mailed to the last registered agent at the last registered office of the foreign limited partnership.
  7. A limited partnership that is dissolved for failure to file an annual report, or a certificate of authority of a foreign limited partnership that is forfeited for failure to file an annual report, may be reinstated by filing a past-due report, together with the statutory filing and penalty fees for an annual report and a reinstatement fee as provided in section 45-10.2-109. The fees must be paid and the report filed within one year following the involuntary dissolution or revocation. Reinstatement under this subsection does not affect the rights or liability for the time from the dissolution or revocation to the reinstatement.

Source:

S.L. 2005, ch. 384, § 6; 2007, ch. 99, § 67; 2019, ch. 92, § 15, effective August 1, 2019; 2021, ch. 85, § 20, effective August 1, 2021.

45-10.2-108.1. Secretary of state — Involuntary dissolution — Revocation of certificate of authority.

  1. With respect to involuntary dissolution of a limited partnership by the secretary of state:
    1. A limited partnership may be involuntarily dissolved by the secretary of state if:
      1. The limited partnership has failed to appoint and maintain a registered agent and registered office as provided in section 45-10.2-17; or
      2. A misrepresentation has been made of any material matter in any application, report, affidavit, or other record submitted by the limited partnership under this chapter.
    2. A limited partnership may not be dissolved by the secretary of state as provided for in this section unless:
      1. The secretary of state has given the limited partnership not less than sixty days’ notice by mail addressed to its registered agent at the registered office in this state or, if the limited partnership does not maintain a registered agent in this state, the notice must be mailed to its principal office; and
      2. During the sixty-day period, the limited partnership has failed to:
        1. File the report of change as provided in chapter 10-01.1 regarding the registered office or the registered agent;
        2. File any other required record; or
        3. Correct the misrepresentation.
    3. Upon expiration of sixty days after the mailing of the notice, the existence of the limited partnership ceases. The secretary of state shall issue a notice of dissolution and shall mail the notice addressed to its registered agent at the registered office in this state or, if the limited partnership does not maintain a registered agent in this state, the notice must be mailed to its principal office.
  2. With respect to the revocation of a certificate of authority of a foreign limited partnership by the secretary of state:
    1. The certificate of authority of a foreign limited partnership to transact business in this state may be revoked by the secretary of state if:
      1. The foreign limited partnership has failed to:
        1. Appoint and maintain a registered agent and registered office as provided in section 45-10.2-82;
        2. Maintain the registration of a general partner as required in section 45-10.2-16;
        3. File a report upon any change in the address of its principal executive office;
        4. File with the secretary of state any amendment to its application for a certificate of authority as provided in section 45-10.2-81;
        5. File with the secretary of state any merger as provided in section 45-10.2-83; or
        6. File with the secretary of state an application for cancellation of its authority as provided in section 45-10.2-85 when the foreign limited partnership’s existence has expired or the foreign limited partnership has been dissolved in the jurisdiction of the foreign limited partnership; or
      2. A misrepresentation has been made of any material matter in any application, report, affidavit, or other record submitted by the foreign limited partnership under this chapter.
    2. A certificate of authority may not be revoked by the secretary of state as provided for in this section unless:
      1. The secretary of state has given the foreign limited partnership not less than sixty days’ notice by mail addressed to its registered agent at the registered office in this state or, if the limited partnership failed to maintain a registered agent in this state, the notice must be mailed to its principal office; and
      2. During the sixty-day period, the foreign limited partnership has failed to:
        1. File the report of change as provided in chapter 10-01.1 regarding the registered office or the registered agent;
        2. Maintain the registration of a general partner as required in section 45-10.2-16;
        3. File a report upon any change in the address of its principal executive office;
        4. File any amendment;
        5. File any merger;
        6. File an application for cancellation;
        7. File any other required record; or
        8. Correct the misrepresentation.
    3. Upon expiration of sixty days after the mailing of the notice, the authority of the foreign limited partnership to transact business in this state ceases. The secretary of state shall issue a notice of revocation and shall mail the notice to the registered agent at the registered office in this state or, if the foreign limited partnership failed to maintain a registered agent in this state, the notice must be mailed to its principal office.
  3. If the limited partnership or foreign limited partnership files a report of change relating to the registered agent or any other required record or correction of a misrepresentation after the notice with the fee provided for in section 45-10.2-109, the secretary of state shall restore the certificate of authority to good standing. Until restored to good standing, the secretary of state may not accept for filing any document respecting the limited partnership or foreign limited partnership except those incident to its dissolution or cancellation.

History. S.L. 2015, ch. 86, § 19, effective July 1, 2015.

45-10.2-109. Secretary of state — Fees for filing records. [Contingent effective date – See note]

The secretary of state shall charge and collect for:

  1. Filing a certificate of limited partnership, one hundred ten dollars.
  2. Filing a limited partnership amendment, forty dollars.
  3. Filing articles of conversion of a limited partnership, fifty dollars and:
    1. If the organization resulting from the conversion will be a domestic organization governed by the laws of this state, then the fees provided by the governing laws to establish or register a new organization like the organization resulting from the conversion; or
    2. If the organization resulting from the conversion will be a foreign organization that will transact business in this state, then the fees provided by the governing laws to obtain a certificate of authority or register an organization like the organization resulting from the conversion.
  4. Filing abandonment of conversion, fifty dollars.
  5. Filing limited partnership articles of merger, fifty dollars.
  6. Filing abandonment of merger or exchange, fifty dollars.
  7. Filing a limited partnership statement of correction, forty dollars.
  8. Filing a limited partnership dissolution, twenty-five dollars.
  9. Filing a limited partnership cancellation, twenty-five dollars.
  10. Filing a reservation of name, ten dollars.
  11. Filing a notice of transfer of a reserved limited partnership name, ten dollars.
  12. Filing a cancellation of a reserved limited partnership name, ten dollars.
  13. Filing a consent to use a name, ten dollars.
  14. Filing a statement of change of address of registered office or change of registered agent, or both, or a change of address of registered office by registered agent, the fee provided by section 10-01.1-03.
  15. Filing a certificate of authority of foreign limited partnership, one hundred ten dollars.
  16. Filing a certified statement of amendment of foreign limited partnership, forty dollars.
  17. Filing a certified statement of dissolution of foreign limited partnership, twenty-five dollars.
  18. Filing a certified statement of cancellation of foreign limited partnership, twenty-five dollars.
  19. Filing a certified statement of merger of foreign limited partnership, fifty dollars.
  20. Filing a certified statement of conversion of foreign limited partnership, fifty dollars and:
    1. If the organization resulting from the conversion will be a domestic organization governed by the laws of this state, then the fees provided by the governing laws to establish or register a new organization like the organization resulting from the conversion; or
    2. If the organization resulting from the conversion will be a foreign organization that will transact business in this state, then the fees provided by the governing laws to obtain a certificate of authority or register an organization like the organization resulting from the conversion.
  21. Filing a statement of withdrawal of foreign limited partnership, twenty-five dollars.
  22. Filing an annual report of a limited partnership or foreign limited partnership, twenty-five dollars.
    1. The secretary of state shall charge and collect additional fees for late filing of an annual report as follows:
      1. After the date provided in subsection 3 of section 45-10.2-108, twenty dollars; and
      2. After the dissolution of the limited partnership or the revocation of the certificate of authority of a foreign limited partnership, the reinstatement fee of one hundred dollars.
    2. Fees paid to the secretary of state according to this subsection are not refundable if an annual report submitted to the secretary of state cannot be filed because it lacks information required by section 45-10.2-108, or the annual report lacks sufficient payment as required by this subsection.
  23. Any record submitted for approval before the actual time of submission for filing, one-half of the fee provided in this section for filing the record.
  24. Filing any process, notice, or demand for service, the fee provided in section 10-01.1-03.
  25. Furnishing a certificate of existence or authorization:
    1. Fifteen dollars; and
    2. Five dollars for a search of records.
  26. Furnishing a certified copy of any record, or paper relating to a limited partnership or foreign limited partnership:
    1. The fee provided in section 54-09-04 for copying a record;
    2. Fifteen dollars for the certificate and affixing the seal thereto; and
    3. Five dollars for a search of records.

Source:

S.L. 2005, ch. 384, § 6; 2007, ch. 99, § 68; 2009, ch. 106, § 67; 2011, ch. 87, § 66; contingently amended by 2019, ch. 93, § 10.

Note.

This section is effective upon receipt by the legislative council of the certification by the secretary of state attesting that all necessary administrative rules and information technology components and systems are ready for implementation of this Act.

45-10.2-110. Secretary of state — Duties.

The secretary of state shall maintain an alphabetical index of all limited partnerships and foreign limited partnerships on file with that office. All records filed with the secretary of state under this chapter must be retained in that office until the records have been committed to microcopy, at which time the records may be destroyed.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-111. Secretary of state — Powers — Enforcement — Penalty — Appeal.

  1. The secretary of state shall administer this chapter.
  2. The secretary of state may propound to any limited partnership or foreign limited partnership subject to this chapter and to any partner any interrogatory reasonably necessary and proper to ascertain whether the partnership has complied with this chapter.
    1. Any interrogatory must be answered within thirty days after mailing or within any additional time fixed by the secretary of state. Every answer to the interrogatory must be full and complete and be made in writing and under oath.
    2. If an interrogatory is directed:
      1. To an individual, then the interrogatory must be answered by that individual;
      2. To a domestic limited partnership, then the interrogatory must be answered by a managing partner; or
      3. To a foreign limited partnership, then the interrogatory must be answered by a resident partner or, if no partner is a resident partner, a partner designated by the foreign limited partnership.
    3. The secretary of state need not file any record to which an interrogatory relates until the interrogatory is answered, except if the answers disclose the record is not in conformity with this chapter.
    4. The secretary of state shall certify to the attorney general, for any action the attorney general determines appropriate, any interrogatory and answers that disclose a violation of this chapter.
    5. Each general partner of a limited partnership or a resident partner or designated partner of a foreign limited partnership who fails or refuses within the time provided by this section to answer truthfully and fully every interrogatory propounded to that person by the secretary of state is guilty of an infraction.
    6. Any interrogatory propounded by the secretary of state and the answers are not open to public inspection under section 44-04-18. The secretary of state may not disclose any fact or information obtained from an interrogatory except to the extent permitted by law or required for evidence in any criminal proceeding or other action by this state.
  3. If the secretary of state rejects any record required by this chapter to be approved by the secretary of state before the record may be filed, then the secretary of state shall give written notice of the rejection to the person that delivered the record, specifying the reasons for rejection. Within thirty days after the service of the notice of denial, the limited partnership or the foreign limited partnership, as the case may be, may appeal to the district court in the judicial district serving Burleigh County by filing with the clerk of that court a petition setting forth a copy of the record sought to be filed and a copy of the written rejection of the record by the secretary of state. The court shall try the matter de novo. The court shall sustain the action of the secretary of state or direct the secretary of state to take any action the court determines proper.
  4. If the secretary of state involuntarily dissolves a limited partnership pursuant to section 45-10.2-108 or if the secretary of state revokes the certificate of authority of any foreign limited partnership and if reinstatement as provided in section 45-10.2-108 was denied for any reason, then the limited partnership or the foreign limited partnership, as the case may be, may appeal to the district court in the judicial district serving Burleigh County by filing with the clerk of that court a petition including:
    1. A copy of the certificate of limited partnership and a copy of the notice of dissolution given by the secretary of state; or
    2. A copy of the certificate of authority of the foreign limited partnership and a copy of the notice of revocation given by the secretary of state.
  5. If the court order sought is one for reinstatement of a limited partnership that has been dissolved as provided in subsection 5 of section 45-10.2-108, or for reinstatement of the certificate of authority of a foreign limited partnership that has been revoked as provided in subsection 6 of section 45-10.2-108, then, together with any other actions the court deems proper, any such order which orders the reinstatement of the limited partnership or the reinstatement of the certificate of authority of a foreign limited partnership shall require the limited partnership or foreign limited partnership to:
    1. File the most recent past-due annual report;
    2. Pay the fees to the secretary of state for all past-due annual reports as provided in subsection 22 of section 45-10.2-109; and
    3. Pay the reinstatement fee to the secretary of state as provided in subsection 22 of section 45-10.2-109.

The court shall try the matter de novo. The court shall sustain the action of the secretary of state or direct the secretary of state to take any action the court determines proper.

Source:

S.L. 2005, ch. 384, § 6; 2009, ch. 106, § 68.

45-10.2-112. Secretary of state — Certificates and certified copies to be received in evidence.

  1. All copies of records filed in accordance with this chapter, when certified by the secretary of state, may be taken and received in all courts, public offices, and official bodies as evidence of the facts stated.
  2. A certificate by the secretary of state under the great seal of this state, as to the existence or nonexistence of the facts relating to limited partnerships or foreign limited partnerships which would not appear from a certified copy of any of the foregoing records or certificates, may be taken and received in all courts, public offices, and official bodies as evidence of the existence or nonexistence of the facts stated.
  3. Any certificate or certified copy issued by the secretary of state under this section may be created and disseminated as an electronic record with the same force and effect as if produced in a paper form.

Source:

S.L. 2005, ch. 384, § 6; 2011, ch. 87, § 67.

45-10.2-113. Secretary of state — Confidential records.

Any social security number or federal tax identification number disclosed or contained in any record filed with the secretary of state under this chapter is confidential. The secretary of state shall delete or obscure any social security number or federal tax identification number before a copy of any record is released to the public.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-114. Secretary of state — Forms to be furnished by the secretary of state.

Every annual report must be made on forms prescribed by the secretary of state. Upon request, the secretary of state may furnish forms for all other records to be filed in the office of the secretary of state. However, the use of these records, unless otherwise specifically required by law, is not mandatory.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-115. Audit reports and audit of limited partnerships receiving state subsidies for production of alcohol or methanol for combination with gasoline.

Any limited partnership or foreign limited partnership that produces agricultural ethyl alcohol or methanol within this state and which receives a production subsidy from the state, whether in the form of reduced taxes or otherwise, shall submit an annual audit report, prepared by a certified public accountant based on an audit of all records and accounts of the limited partnership or foreign limited partnership, to the legislative audit and fiscal review committee. The audit must be submitted within ninety days of the close of the taxable year of the limited partnership or foreign limited partnership. Upon request of the legislative audit and fiscal review committee, the state auditor shall conduct an audit of the records and accounts of any limited partnership or foreign limited partnership required to submit an annual report under this section.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-116. (1201) Uniformity of application and construction.

In applying and construing this chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Source:

S.L. 2005, ch. 384, § 6.

45-10.2-117. (1203) Relation to Electronic Signatures in Global and National Commerce Act.

This chapter modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act [15 U.S.C. 7001 et seq.] but this chapter does not modify, limit, or supersede section 101 of that Act or authorize electronic delivery of any of the notices described in section 103(b) of that Act.

Source:

S.L. 2005, ch. 384, § 6.

Note.

Sections 101 and 103(b) of the federal Electronic Signatures in Global and National Commerce Act, referred to in this section, are compiled at 15 USCS 7001 and 15 USCS 7003(b), respectively.

CHAPTER 45-11 Fictitious Partnership Name

45-11-01. Partnership — Use of fictitious name. [Contingent effective date – See note]

  1. As used in this section, “fictitious name” means a name assumed to identify a partnership and which does not include in its name:
    1. The true name of each organizational partner;
    2. The first name and surname of each partner; or
    3. The surname of each partner, repeating a surname if more than one partner has the same surname.
  2. A partnership transacting business in this state under a fictitious name or under a designation not showing the names of the persons interested as partners must file a fictitious name certificate with the secretary of state, together with a filing fee of twenty-five dollars. When a partnership has more than two members, an additional three dollars must be paid for each additional member not to exceed two hundred fifty dollars. A limited partnership or a foreign limited partnership transacting business under a name filed under chapter 45-10.2 and as provided in section 45-11-03 or a partnership transacting business under a name filed under section 45-13-05 is not required to file a fictitious name certificate under this section.
  3. The fictitious name:
    1. Must be expressed in letters or characters used in the English language as those letters or characters appear in the American standard code for information interchange (ASCII) table.
    2. May not contain the word “corporation”, “company”, “incorporated”, “limited liability company”, or “limited”, or an abbreviation of any of those words. This subsection does not preclude the word “limited” from being used in conjunction with the word “partnership”.
    3. Must be distinguishable in the records of the secretary of state from a name reserved or registered with the secretary of state unless there is filed with the fictitious name certificate a written consent from the holder of the indistinguishable name to use the proposed name and filing fee of ten dollars, whether domestic or foreign, including:
      1. A corporate name;
      2. A limited liability company name;
      3. A trade name;
      4. Any other fictitious partnership name;
      5. A limited partnership name;
      6. A limited liability partnership name;
      7. A limited liability limited partnership name; or
      8. A trademark or service mark.
  4. The secretary of state shall determine whether a fictitious partnership name is distinguishable in the secretary of state’s records from another name for purposes of this chapter and may adopt rules reasonable or necessary for making these determinations.

Source:

S.L. 1959, ch. 326; 1983, ch. 498, § 3; 1985, ch. 505, § 1; 1987, ch. 73, § 29; 1991, ch. 100, § 6; 1993, ch. 54, § 106; 1993, ch. 75, § 17; 1995, ch. 430, § 1; 2001, ch. 402, § 1; S.L. 2005, ch. 384, § 7; 2011, ch. 338, § 1; contingently amended by 2019, ch. 93, § 11.

Cross-References.

Registration of trade names, see N.D.C.C. ch. 47-25.

DECISIONS UNDER PRIOR LAW

Analysis

Fictitious Name.

The failure of a partnership, doing business under a fictitious name, to file certificate stating names of members of partnership and publish same, constituted an affirmative defense to an action brought by the partnership, which would be waived if not raised by answer or by a proper and timely motion. Such failure did not affect the jurisdiction of the court nor the validity of a judgment entered in an action where the defense was not pleaded. Newcastle Drilling Co. v. Thorndal, 105 N.W.2d 332, 1960 N.D. LEXIS 87 (N.D. 1960).

Surnames.

A firm name which showed the surnames only of the partners was not “a fictitious name” or “a designation not showing the names of the parties”. Walker v. Stimmel, 15 N.D. 484, 107 N.W. 1081, 1906 N.D. LEXIS 50 (N.D. 1906).

45-11-02. How certificate executed — Content.

A certificate filed with the secretary of state as provided in section 45-11-01 must be signed by one or more of the general partners. The certificate must state the fictitious name, a brief description of the nature of business in which the partnership is engaged in this state, the names in full and principal addresses of all the general partners, and the address of the principal place of business.

Source:

S.L. 1959, ch. 326; 1983, ch. 498, § 4; 1985, ch. 505, § 2; 1987, ch. 546, § 1; 1989, ch. 549, § 2; 1993, ch. 446, § 1; 1995, ch. 431, § 1.

45-11-02.1. Electronic filing of fictitious name certificate.

A partnership may file a fictitious name certificate by electronic communication with the secretary of state. The following definitions apply to electronic fictitious name certificate filings with the secretary of state:

  1. “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
  2. “Electronic communication” means any form of communication acceptable to the secretary of state, not directly involving the physical transmission of paper:
    1. That creates a record that may be retained, retrieved, and reviewed by a recipient of the communication; and
    2. That may be directly reproduced in paper form by the recipient through an automated process.
  3. “Electronic record” means a record created, generated, sent, communicated, received, or stored by electronic means.
  4. “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
  5. “Legal recognition” means a record or signature may not be denied legal effect or enforceability solely because it is in electronic form. If a provision of this chapter requires:
    1. A record to be in writing, an electronic record satisfies the requirement.
    2. A signature, an electronic signature satisfies the requirement.
  6. “Signed” means that the signature of a person, which may be a facsimile affixed, engraved, printed, placed, stamped with indelible ink, transmitted by facsimile telecommunication or electronically, or in any other manner reproduced on the document, and is communicated by a method or medium of communication acceptable to the secretary of state.

Source:

S.L. 2003, ch. 390, § 1.

45-11-03. Foreign partnership permitted to use fictitious name.

A commercial partnership established and transacting business in a place without the United States may use in this state the partnership name used by it there, without filing the certificate prescribed in section 45-11-01, although it is fictitious or does not show the names of the persons interested as partners in such business.

Source:

S.L. 1959, ch. 326; 1985, ch. 505, § 3.

45-11-03.1. Registration of general partner.

A general partner must be registered separately with the secretary of state at the time of filing a fictitious name certificate whenever that general partner is either a domestic or foreign:

  1. Corporation;
  2. Limited liability company;
  3. Limited partnership;
  4. General partnership using a fictitious name; or
  5. Any other organization that has a registration responsibility with the secretary of state.

Source:

S.L. 1995, ch. 429, § 2.

45-11-04. Penalty for unlawful use of fictitious name.

Persons doing business as partners contrary to the provisions of section 45-11-01 may not maintain an action on, or an account of, any contracts made or transactions had in their partnership name in any court of this state until they have filed the certificate required by section 45-11-01. If such partners comply with such provisions at any time, they thereupon have the right to maintain an action on all such partnership contracts and transactions entered into prior to, as well as after, such compliance.

Source:

S.L. 1959, ch. 326; 1985, ch. 505, § 4.

45-11-04.1. Renewal.

A fictitious name certificate filed under this chapter must be renewed every five years from the date of the initial filing. The statement of renewal must be executed by the partnership on forms prescribed by the secretary of state. The statement must include the fictitious name of the partnership, the state or country of organization, the address of the principal place of business, a brief description of the nature of business in which the partnership is engaged in this state, the names and addresses of all general partners, and a statement that the partnership is still in existence and continues to transact business in this state. If the secretary of state finds that the statement conforms to the requirements of this section, and the filing fee of twenty-five dollars has been paid, the secretary of state shall file the statement. If the secretary of state finds that it does not so conform, the secretary of state shall promptly return the statement to the partnership for any necessary corrections, in which event, the fictitious name certificate is subject to cancellation if the statement is not returned corrected within thirty days after the statement was returned for corrections. If the statement of renewal reflects a change of membership, the statement of renewal may not be filed until payment of the fees required for these changes are paid as required by section 45-11-05.1. The secretary of state shall provide notice sent to the address of the principal place of business at least ninety days before the deadline for filing the state of renewal. If a partnership fails to file the statement of renewal when due, the fictitious name certificate must be canceled by the secretary of state and notice of the cancellation must be mailed to the address of the principal place of business.

Source:

S.L. 1985, ch. 505, § 10; 1989, ch. 549, § 3; 1995, ch. 431, § 2; 1999, ch. 404, § 1; 2003, ch. 390, § 2; 2019, ch. 92, § 16, effective August 1, 2019.

45-11-05. Amended certificate required when members changed.

Whenever there is a change in the general partners who are members of a partnership transacting business in this state under a fictitious name, or in a designation which does not show the names of the persons interested as general partners in the business, except in a case mentioned in section 45-11-03, a new certificate must be filed with the secretary of state as required by this chapter upon the formation of the partnership. The secretary of state shall receive the new certificate as an amended certificate and may not require the old certificate to be canceled.

Source:

S.L. 1959, ch. 326; 1983, ch. 498, § 5; 1985, ch. 505, § 5; 1989, ch. 549, § 4; 1991, ch. 481, § 1.

45-11-05.1. Change of name or address of member.

  1. Any member named on a fictitious name certificate that effects a name change must record that name change with the secretary of state. The secretary of state must record the name change upon the payment of twenty-five dollars and filing of the following:
    1. A notarized statement reciting the name change if the member is an individual.
    2. A certificate of fact reciting the name change duly authenticated by the proper officer of the state or country if the member is a corporation or limited partnership incorporated or organized in another state or country which does not have a certificate of authority to transact business in North Dakota.
    3. An amendment or application for amended certificate of authority for a member that is a corporation, a limited liability company, a limited partnership, a limited liability partnership, or a limited liability limited partnership registered with the secretary of state.
  2. A registrant shall notify the secretary of state in writing without a filing fee when effecting a change of address. An annual report from a corporation, a limited liability company, a limited partnership, a limited liability partnership, or a limited liability limited partnership filed by the secretary of state which reflects a change of address of the principal place of business of the member may serve as such notice.

Source:

S.L. 1993, ch. 446, § 2; 2015, ch. 86, § 20, effective July 1, 2015.

45-11-06. Duty of secretary of state regarding fictitious name certificate.

The secretary of state shall keep an alphabetical file of the fictitious names filed with the secretary of state under this chapter. The secretary of state may destroy all fictitious name certificates or renewals one year after expiration.

Source:

S.L. 1959, ch. 326; 1983, ch. 498, § 6; 1985, ch. 505, § 6; 1989, ch. 549, § 5; 1993, ch. 446, § 3.

45-11-07. Certified copy used as evidence.

A copy of the entry of the secretary of state relating to a partnership certificate, made as directed in section 45-11-01, when certified by the secretary of state, is presumptive evidence of the facts stated therein.

Source:

S.L. 1959, ch. 326; 1983, ch. 498, § 7; 1985, ch. 505, § 7.

Cross-References.

Affidavit of publication, see N.D.C.C. §§ 31-04-05 to 31-04-09.

45-11-08. Unlawful use of fictitious partnership name.

It is unlawful for any person to transact business in the name of another person, as a partner, who is not interested in that business.

Source:

S.L. 1959, ch. 326; 1975, ch. 106, § 514; 1985, ch. 505, § 8.

45-11-08.1. Principal place of business.

Each partnership which files a fictitious name certificate shall have and continuously maintain on file in the office of the secretary of state an address of the principal place of business, which must also serve as a mailing address. The address of the principal place of business may be changed by notifying the secretary of state. The notification must contain the name of the partnership, the state or country of organization, and the new address of the principal place of business.

Source:

S.L. 1985, ch. 505, § 9; 2003, ch. 390, § 3.

45-11-08.2. Cancellation.

The secretary of state shall cancel:

  1. Any fictitious name filed before August 1, 1997, by a limited liability partnership upon written request for cancellation, from one or more partners, without a filing fee.
  2. Any other fictitious name upon request for cancellation on forms prescribed by the secretary of state, from one or more partners, with the filing fee of ten dollars.
  3. Any fictitious name when the registrant is a limited partnership, a limited liability partnership, or limited liability limited partnership that has ceased to exist for six months.

Source:

S.L. 1989, ch. 550, § 1; 1999, ch. 95, § 165; 2009, ch. 106, § 69; 2021, ch. 85, § 21, effective August 1, 2021.

45-11-09. General penalty.

Any person violating any provision of this chapter for which another penalty is not specifically set forth shall be guilty of a class A misdemeanor.

Source:

S.L. 1975, ch. 106, § 515.

Cross-References.

Classification of offenses; penalties, see N.D.C.C. § 12.1-32-01.

45-11-10. Secretary of state — Exempt records.

Any social security number or federal tax identification number disclosed or contained in any document filed with the secretary of state under this chapter is an exempt record as defined by subsection 5 of section 44-04-17.1. The secretary of state shall take reasonable precautions to delete or obscure any social security number or federal tax identification number the secretary of state determines to be a closed record before a copy of any document is released to the public.

Source:

S.L. 2003, ch. 390, § 4.

CHAPTER 45-12 Application of Law

45-12-01. Provisions for existing limited partnerships. [Repealed]

Repealed by S.L. 2005, ch. 384, § 19.

45-12-02. Provisions for other existing partnerships.

  1. Except for a general partnership governed by subsection 2, a general partnership formed under any statute of this state prior to July 1, 1959, including the general partners of a special or limited partnership formed prior to July 1, 1959, are governed by the provisions of chapters 45-05 through 45-12, until January 1, 1997, from and after July 1, 1959. After December 31, 1996, all partnerships are governed as provided in subsection 3.
  2. Before January 1, 1997, chapters 45-13 through 45-21 govern only a partnership formed:
    1. After January 1, 1996, unless that partnership is continuing the business of a dissolved partnership under section 45-09-13; and
    2. Before January 1, 1996, that elects, as provided by subsection 4, to be governed by chapters 45-13 through 45-21.
  3. After December 31, 1996, chapters 45-13 through 45-21 govern all partnerships.
  4. Before January 1, 1997, a partnership voluntarily may elect, in the manner provided in its partnership agreement or by law for amending the partnership agreement, to be governed by chapters 45-13 through 45-21. Provisions of chapters 45-13 through 45-21 relating to the liability of the partnership’s partners to third parties apply to limit those partners’ liability to a third party who had done business with the partnership within one year preceding the partnership’s election to be governed by chapters 45-13 through 45-21, only if the third party knows or has received a notification of the partnership’s election to be governed by chapters 45-13 through 45-21.

Source:

S.L. 1959, ch. 326; 1995, ch. 430, § 2.

Law Reviews.

Registration and Operation of North Dakota and Minnesota Limited Liability Partnerships, 72 N.D. L. Rev. 555 (1996).

45-12-03. Repeal.

Except as affecting existing limited or special partnerships to the extent set forth in section 45-12-01, chapters 45-01, 45-02, 45-03, and 45-04 are hereby repealed.

Source:

S.L. 1959, ch. 326.

45-12-04. Citation. [Repealed]

Repealed by S.L. 1995, ch. 430, § 12.

CHAPTER 45-13 Partnerships in General

45-13-01. (101) Definitions.

For the purposes of chapters 45-13 through 45-21 unless the context otherwise requires:

  1. “Address” means:
    1. In the case of a registered office or principal executive office, the mailing address, including the zip code, of the actual office location, which may not be only a post-office box; and
    2. In any other case, the mailing address, including the zip code.
  2. “Authenticated electronic communication” means:
    1. That the electronic communication is delivered:
      1. To the principal place of business of the partnership; or
      2. To a managing partner or agent of the partnership authorized by the partnership to receive the electronic communication; and
    2. That the electronic communication sets forth information from which the partnership can reasonably conclude that the electronic communication was sent by the purported sender.
  3. “Ballot” means a written ballot or a ballot transmitted by electronic communication.
  4. “Business” includes every trade, occupation, and profession.
  5. “Debtor in bankruptcy” means a person that is the subject of:
    1. An order for relief under title 11 of the United States Code or a comparable order under a successor statute of general application; or
    2. A comparable order under federal, state, or foreign law governing insolvency.
  6. “Distribution” means a transfer of money or other property from a partnership to a partner in the capacity of the partner as a partner or to the transferee of the partner.
  7. “Domestic organization” means an organization created under the laws of this state.
  8. “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
  9. “Electronic communication” means any form of communication, not directly involving the physical transmission of paper:
    1. That creates a record that may be retained, retrieved, and reviewed by a recipient of the communication; and
    2. That may be directly reproduced in paper form by the recipient through an automated process.
  10. “Electronic record” means a record created, generated, sent, communicated, received, or stored by electronic means.
  11. “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and signed or adopted by a person with the intent to sign the record.
  12. “Filed with the secretary of state” means, except as otherwise permitted by law or rule:
    1. That a record meeting the applicable requirements of this chapter together with the fees provided in section 45-13-05 was delivered or communicated to the secretary of state by a method or medium of communication acceptable by the secretary of state and was determined by the secretary of state to conform to law.
    2. That the secretary of state did then:
      1. Record the actual date on which the record was filed, and if different, the effective date of filing; and
      2. Record the record in the office of the secretary of state.
  13. “Foreign limited liability partnership” means a partnership that is formed under laws other than the laws of this state and has the status of a limited liability partnership under those laws.
  14. “Foreign organization” means an organization created under laws other than the laws of this state for a purpose for which an organization may be created under the laws of this state.
  15. “Limited liability partnership” means a partnership that filed a registration under chapter 45-22 and does not have a similar statement in effect in any other jurisdiction.
  16. “Managing partner” means a partner charged with the management of the partnership in this state and if no partners are specifically so designated, then all partners.
  17. “Notice”:
    1. Is given to a partnership:
      1. When in writing and mailed or delivered to the principal executive office of the partnership; or
      2. When given by a form of electronic communication consented to by a managing partner to which the notice is given if by:
        1. Facsimile communication, when directed to a telephone number at which the managing partner has consented to receive notice.
        2. Electronic mail, when directed to an electronic mail address at which the managing partner has consented to receive notice.
        3. Posting on an electronic network on which the managing partner has consented to receive notice, together with separate notice to the managing partner of the specific posting, upon the later of:
          1. The posting; or
          2. The giving of the separate notice.
        4. Any other form of electronic communication by which a managing partner has consented to receive notice, when directed to the partnership.
    2. Is given to a partner of the partnership:
      1. When in writing and mailed or delivered to the partner at the principal executive office address of the partnership; or
      2. When given by a form of electronic communication consented to by the partner to which the notice is given if by:
        1. Facsimile communication, when directed to a telephone number at which the partner has consented to receive notice;
        2. Electronic mail, when directed to an electronic mail address at which the partner has consented to receive notice;
        3. Posting on an electronic network on which the partner has consented to receive notice, together with separate notice to the partner of the specific posting, upon the later of:
          1. The posting; or
          2. The giving of the separate notice; or
        4. Any other form of electronic communication by which the partner has consented to receive notice, when directed to the partner.
    3. Is given in all other cases:
      1. When mailed to the person at an address designated by the person or at the last-known address of the person;
      2. When deposited with a nationally recognized overnight delivery service for overnight delivery, if overnight delivery to the person is not available, for delivery as promptly as practicable, to the person at an address designated by the person or at the last-known address of the person;
      3. When handed to the person;
      4. When left at the office of the person with a clerk or other person in charge of the office or:
        1. If there is no one in charge, when left in a conspicuous place in the office; or
        2. If the office is closed or the person to be notified has no office, when left at the dwelling, house, or other usual place of abode of the person with some person of suitable age and discretion residing there;
      5. When given by a form of electronic communication consented to by the person to whom the notice is given if by:
        1. Facsimile communication, when directed to a telephone number at which the person has consented to receive notice;
        2. Electronic mail, when directed to an electronic mail address at which the person has consented to receive notice;
        3. Posting on an electronic network on which the person has consented to receive notice, together with separate notice to the person of the specific posting, upon the later of:
          1. The posting; or
          2. The giving of the separate notice; or
        4. Any other form of electronic communication by which the person has consented to receive notice, when directed to the person; or
      6. When the method is fair and reasonable when all circumstances are considered.
    4. Is given by mail when deposited in the United States mail with sufficient postage affixed.
    5. Is given by deposit for delivery when deposited for delivery as provided in paragraph 2 of subdivision c, after having made sufficient arrangements for payment by the sender.
    6. Is deemed received when given.
  18. “Organization”:
    1. Means, whether a domestic or foreign, a corporation, limited liability company, partnership, limited partnership, limited liability partnership, limited liability limited partnership, and any other person subject to a governing statute; but
    2. Excludes:
      1. A nonprofit corporation, whether a domestic nonprofit corporation which is incorporated under chapter 10-33 or a foreign nonprofit corporation which is incorporated in another jurisdiction; or
      2. Any nonprofit limited liability company, whether a domestic nonprofit limited liability company which is organized under chapter 10-36 or a foreign nonprofit limited liability company which is organized in another jurisdiction.
  19. “Partnership” means an association of two or more persons to carry on as co-owners a business for profit formed under section 45-14-02, predecessor law, or comparable law of another jurisdiction.
  20. “Partnership agreement” means the agreement, whether written, oral, or implied, among the partners concerning the partnership, including amendments to the partnership agreement.
  21. “Partnership at will” means a partnership in which the partners have not agreed to remain partners until the expiration of a definite term or the completion of a particular undertaking.
  22. “Partnership interest” or “partner’s interest in the partnership” means all of the interests of a partner in the partnership, including the transferable interest of the partner and all management and other rights.
  23. “Principal executive office” means an office from which the partnership conducts business.
  24. “Property” means all property, real, personal, or mixed, tangible or intangible, or any interest therein.
  25. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
  26. “Signed” means:
    1. That the signature of a person, which may be a facsimile affixed, engraved, printed, placed, stamped with indelible ink, transmitted by facsimile telecommunication or electronically, or in any other manner reproduced on the record, is placed on a record with the present intention to authenticate that record; and
    2. With respect to a record required by this chapter to be filed with the secretary of state, that:
      1. The record is signed by a person authorized to do so by this chapter or by a resolution approved by the affirmative vote of the required proportion or number of partners; and
      2. The signature and the record are communicated by a method or medium of communication acceptable by the secretary of state.
  27. “State” means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or insular possession subject to the jurisdiction of the United States.
  28. “Statement” means:
    1. A statement of partnership authority under section 45-15-03;
    2. A statement of denial under section 45-15-04;
    3. A statement of dissociation under section 45-19-04;
    4. A statement of dissolution under section 45-20-05;
    5. A statement of conversion under section 45-21-04;
    6. A statement of merger under section 45-21-07; or
    7. An amendment or cancellation of any of the foregoing.
  29. “Surviving organization” means an organization into which one or more other organizations are merged and which:
    1. May pre-exist the merger; or
    2. Are created by the merger.
  30. “Transfer” includes an assignment, conveyance, lease, mortgage, deed, and encumbrance.

Source:

S.L. 1995, ch. 430, § 3; 1999, ch. 95, § 166; 2003, ch. 85, § 138; 2005, ch. 100, § 121; 2007, ch. 354, § 25; 2007, ch. 101, § 72; 2009, ch. 106, § 70.

Cross-References.

Income tax, partnerships not subject to, see N.D.C.C. § 57-38-08.

Income tax return to be filed for information purposes, see N.D.C.C. § 57-38-42.

Workers compensation law, partnership as “employer” within, see N.D.C.C. § 65-01-02, subd. 17 c.

Notes to Decisions

Evidence of Partnership.

Fact that brothers allocated each year’s profits from cattle ranch equally on partnership income tax return, with each party being liable for his share of the profits on his personal income tax return was evidence of a partnership between the parties. Tarnavsky v. Tarnavsky, 147 F.3d 674, 1998 U.S. App. LEXIS 12129 (8th Cir. N.D. 1998).

Trial court did not err in concluding that a partnership did not exist between plaintiffs and defendants in an action for breach of fiduciary duty where the purchase of oil and gas leases was a separate act undertaken by the parties, not a series of acts that would constitute a business as defined by N.D.C.C. § 45-13-01(4) and as interpreted by the commentary to the Revised Uniform Partnership Act. Sandvick v. LaCrosse, 2008 ND 77, 747 N.W.2d 519, 2008 N.D. LEXIS 77 (N.D. 2008).

Collateral References.

Construction and Application of Revised Uniform Partnership Act. 70 A.L.R.6th 209.

Law Reviews.

Registration and Operation of North Dakota and Minnesota Limited Liability Partnerships, 72 N.D. L. Rev. 555 (1996).

For Case Comment: Joint Ventures – Essential Elements: The North Dakota Supreme Court Creates a Broader Definition of Joint Ventures Sandvick v. LaCrosse, 2008 ND 77, 747 N.W.2d 519, see 85 N. Dak. L. Rev. 469 (2009).

45-13-01.1. Legal recognition of electronic records and electronic signatures.

For purposes of this chapter:

  1. A record of signature may not be denied legal effect or enforceability solely because it is in electronic form;
  2. A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation;
  3. If a provision requires a record to be in writing, an electronic record satisfies the requirement;
  4. If a provision requires a signature, an electronic signature satisfies the requirement; and
  5. The provisions of this chapter relating to electronic records and electronic transactions do not limit or supersede chapter 9-16.

Source:

S.L. 2003, ch. 85, § 139; 2005, ch. 100, § 122.

Cross-References.

Electronic transactions, see N.D.C.C. ch. 9-16.

45-13-02. (102) Knowledge and notice.

  1. A person knows a fact if the person has actual knowledge of it. A person does not know or have knowledge of a fact merely because the person has reason to know or have knowledge of the fact.
  2. A person has notice of a fact if the person:
    1. Knows of the fact;
    2. Has received notice of the fact as provided in subsection 17 of section 45-13-01; or
    3. Has reason to know the fact exists from all of the facts known to the person at the time in question.
  3. A person notifies or gives a notification to another by taking the steps provided in subsection 17 of section 45-13-01, whether or not the other person learns of it.
  4. A person receives a notification as provided in subsection 17 of section 45-13-01.
  5. Except as otherwise provided in subsection 6, and except as otherwise provided in subsection 17 of section 45-13-01, a person other than an individual knows, has notice, or receives a notification of a fact for purposes of a particular transaction when the individual conducting the transaction for the person knows, has notice, or receives a notification of the fact, or in any event when the fact would have been brought to the attention of the individual if the person had exercised reasonable diligence.
    1. A person other than an individual exercises reasonable diligence if it maintains reasonable routines for communicating significant information to the individual conducting the transaction for the person and there is reasonable compliance with the routines.
    2. Reasonable diligence does not require an individual acting for the person to communicate information unless the communication is part of the regular duties of the individual or the individual has reason to know of the transaction and that the transaction would be materially affected by the information.
  6. Knowledge, notice, or receipt of a notification of a fact relating to the partnership by a managing partner is effective immediately as knowledge by, notice to, or receipt of a notification by the partnership, except in the case of a fraud on the partnership committed by or with the consent of that partner.
  7. With respect to notice given by a form of electronic communication:
    1. Consent by a managing partner to notice given by electronic communication may be given in writing or by authenticated electronic communication. The partnership is entitled to rely on any consent so given until revoked by the managing partner. However, no revocation affects the validity of any notice given before receipt by the partnership of revocation of the consent.
    2. An affidavit of a managing partner or an authorized agent of the partnership, that the notice has been given by a form of electronic communication is, in the absence of fraud, prima facie evidence of the facts stated in the affidavit.

Source:

S.L. 1995, ch. 430, § 3; 2005, ch. 100, § 123.

Notes to Decisions

Notice to Joint Venture.

Where two parties made contributions to an enterprise to build and sell airplanes, they both exerted a degree of control, there was a written contract, and there was an intent to share the profits based on a designer’s broad role in the operation, a designer had the authority to bind the venture under N.D.C.C. § 45-15-01(1) when he forfeited his rights to a plane pledged as security for a loan. Moreover, a lender was not required to sell the plane in a commercially reasonable manner because notice to one party was notice to the joint venture under N.D.C.C. § 45-13-02(6), and the lender had no knowledge of another party’s alleged security interest in the plane. SPW Assocs., Inc. v. Anderson, 2006 ND 159, 718 N.W.2d 580, 2006 N.D. LEXIS 164 (N.D. 2006).

Notice to Partnership.

Option requirement that a certified mailing be made to the partnership was fulfilled when such mailing was sent to a general partner of partnership. Matrix Props. Corp. v. TAG Invs., 2000 ND 88, 609 N.W.2d 737, 2000 N.D. LEXIS 96 (N.D. 2000).

45-13-02.1. Reservation of legislative right.

The legislative assembly reserves the right to amend or repeal the provisions of this chapter. A partnership formed under or governed by this chapter is subject to this reserved right.

Source:

S.L. 2007, ch. 101, § 73.

45-13-03. (103) Effect of partnership agreement — Nonwaivable provisions.

  1. Except as otherwise provided in subsection 2, relations among the partners and between the partners and the partnership are governed by the partnership agreement. To the extent the partnership agreement does not otherwise provide, chapters 45-13 through 45-21 govern relations among the partners and between the partners and the partnership.
  2. The partnership agreement may not:
    1. Vary the rights and duties under section 45-13-05 except to eliminate the duty to provide copies of statements to all of the partners;
    2. Unreasonably restrict the right of access to books and records under subsection 2 of section 45-16-03;
    3. Eliminate the duty of loyalty under subsection 2 of section 45-16-04 or subdivision c of subsection 2 of section 45-18-03, but:
      1. The partnership agreement may identify specific types or categories of activities that do not violate the duty of loyalty, if not manifestly unreasonable; or
      2. All of the partners or a number or percentage specified in the partnership agreement may authorize or ratify, after full disclosure of all material facts, a specific act or transaction that otherwise would violate the duty of loyalty;
    4. Unreasonably reduce the duty of care under subsection 3 of section 45-16-04 or subdivision c of subsection 2 of section 45-18-03;
    5. Eliminate the obligation of good faith and fair dealing under subsection 4 of section 45-16-04, but the partnership agreement may prescribe the standards by which the performance of the obligation is to be measured, if the standards are not manifestly unreasonable;
    6. Vary the power to dissociate as a partner under subsection 1 of section 45-18-02, except to require the notice under subsection 1 of section 45-18-01 to be in writing;
    7. Vary the right of a court to expel a partner in the events specified in subsection 5 of section 45-18-01;
    8. Vary the requirement to wind up the partnership business in cases specified in subsection 4, 5, or 6 of section 45-20-01;
    9. Vary the law applicable to a limited liability partnership under chapter 45-22; or
    10. Restrict rights of third parties under chapters 45-13 through 45-21.

Source:

S.L. 1995, ch. 430, § 3; 1999, ch. 95, § 167.

Notes to Decisions

Compensation of Partners.

Partnership property could be sold upon dissolution of the partnership to pay a partner for uncompensated work, notwithstanding N.D.C.C. § 45-16-01(8), where the partnership agreement provided for reasonable compensation and the evidence supported the trial court’s finding of an informal salary arrangement; pursuant to subsection (1) of this section, a partnership agreement controls whether or not the partners are entitled to compensation for services provided to the partnership. Akerlind v. Buck, 2003 ND 169, 671 N.W.2d 256, 2003 N.D. LEXIS 183 (N.D. 2003).

Contributions.

In a partnership dispute, a district court’s finding that the partners had agreed there would be no accounting or equalization of unequal real estate contributions to pay partnership debt was not clearly erroneous. N.D.C.C. § 45-16-01 did not mandate a credit for unequal contributions when the partners had agreed otherwise. Carlson v. Carlson, 2011 ND 168, 802 N.W.2d 436, 2011 N.D. LEXIS 168 (N.D. 2011).

45-13-04. (104) Supplemental principles of law.

  1. Unless displaced by particular provisions of chapters 45-13 through 45-21, the principles of law and equity supplement chapters 45-13 through 45-21.
  2. If an obligation to pay interest arises under chapters 45-13 through 45-21 and the rate is not specified, the rate is that specified in section 47-14-05.

Source:

S.L. 1995, ch. 430, § 3.

45-13-04.1. Partnership name. [Contingent effective date – See note]

  1. A partnership name filed in a statement under section 45-13-05:
    1. Must be in the English language or in any other language expressed in English letters or characters;
    2. May contain the name of a partner;
    3. May not contain the word “corporation”, “company”, “incorporated”, “limited liability company”, “limited partnership”, “limited liability partnership”, “limited liability limited partnership”, or an abbreviation of these words;
    4. May not contain a word or phrase that indicates or implies that the partnership:
      1. Is organized for a purpose other than a lawful purpose for which a partnership may be organized under this chapter; or
      2. May not be formed under this chapter; and
    5. Must be distinguishable in the records of the secretary of state from:
      1. The name, whether foreign and authorized to do business in this state or domestic, unless filed with the statement is a record which complies with subsection 3 of:
        1. Another partnership;
        2. A limited liability company;
        3. A corporation;
        4. A limited partnership;
        5. A limited liability partnership; or
        6. A limited liability limited partnership;
      2. A name, the right of which is, at the time of filing, reserved in the manner provided in section 10-19.1-14, 10-32.1-12, 10-33-11, 45-10.2-11, 45-13-04.2, or 45-22-05;
      3. A fictitious name registered in the manner provided in chapter 45-11;
      4. A trade name registered in the manner provided in chapter 47-25; or
      5. A trademark or service mark registered in the manner provided in chapter 47-22.
  2. The secretary of state shall determine whether a partnership name is distinguishable in the secretary of state’s records from another name for purposes of this chapter and may adopt rules reasonable or necessary for making these determinations.
  3. If the secretary of state determines a partnership name is indistinguishable in the secretary of state’s records from another name for purposes of this chapter, the partnership name may not be used unless there is filed with the statement:
    1. The written consent of the holder of the rights to the name to which the proposed name is determined to be indistinguishable; or
    2. A certified copy of a judgment of a court in this state establishing the earlier right of the applicant to the use of the name in this state.
  4. This section does not affect the right of a partnership existing on July 1, 1999, or a foreign partnership authorized to do business in this state on July 1, 1999, to continue the use of the foreign partnership’s name.
  5. This section and section 45-13-04.2 do not:
    1. Abrogate or limit the law of unfair competition or unfair practices; chapter 47-25; the laws of the United States with respect to the right to acquire and protect copyrights, trade names, trademarks, service names, service marks; or any other rights to the exclusive use of a name or symbol.
    2. Derogate the common law or any principle of equity.
  6. A partnership that is the surviving organization in a merger with one or more other organizations, or that acquires by sale, lease, or other disposition to or exchange with an organization all or substantially all of the assets of another organization including its name, may have the same name, subject to the requirements of subsection 1, as that used in this state by any of the other organizations if the other organization whose name is sought to be used:
    1. Is formed under the laws of this state;
    2. Is authorized to transact business or conduct activities in this state;
    3. Holds a reserved name in the manner provided in section 10-19.1-14, 10-32-11, 10-32.1-12, 45-10.2-11, 45-13-04.2, or 45-22-05;
    4. Holds a fictitious name registered in the manner provided in chapter 45-11; or
    5. Holds a trade name registered in the manner provided in chapter 47-25.
  7. The use of a name by a partnership in violation of this section does not affect or vitiate the partnership existence of the partnership. However, a court in this state may, upon application of the state or of an interested or affected person, enjoin the partnership from doing business under a name assumed in violation of this section, although a statement may have been filed with the secretary of state.
  8. If the period of existence of the partnership is expired or a statement of a partnership filed under section 45-13-05 is expired, then the partnership may reacquire the right to use that name by refiling a statement pursuant to section 45-13-05, unless the name was adopted for use or reserved by another person, in which case the filing must be rejected unless the filing is accompanied by a written consent or judgment pursuant to subsection 3. A partnership that cannot reacquire the use of its partnership name shall adopt a new partnership name that complies with this section.

Source:

S.L. 1999, ch. 95, § 168; 2003, ch. 85, § 140; 2005, ch. 100, § 124; 2005, ch. 384, § 8; contingently amended by 2015, ch. 87, §§ 30, 31, effective July 1, 2015; contingently amended by 2019, ch. 93, § 12.

Note.

This section is effective upon receipt by the legislative council of the certification by the secretary of state attesting that all necessary administrative rules and information technology components and systems are ready for implementation of this Act.

45-13-04.2. Reserved name.

  1. The exclusive right to the use of a partnership name otherwise permitted by section 45-13-04.1 may be reserved by any person.
  2. The reservation is made by filing with the secretary of state a request that the name be reserved together with the fees provided in section 45-13-05.
    1. If the name is available for use by the applicant, the secretary of state shall reserve the name for the exclusive use of the applicant for a period of twelve months.
    2. The reservation may be renewed for successive twelve-month periods.
  3. The right to the exclusive use of a partnership name reserved pursuant to this section may be transferred to another person by or on behalf of the applicant for whom the name was reserved by filing with the secretary of state a notice of the transfer and specifying the name and address of the transferee.
  4. The right to the exclusive use of a partnership name reserved pursuant to this section may be canceled by or on behalf of the applicant for whom the name was reserved by filing with the secretary of state a notice of the cancellation.
  5. The secretary of state may destroy any reserved name request and any index of reserved names one year after expiration.

Source:

S.L. 1999, ch. 95, § 169; 2003, ch. 85, § 141; 2005, ch. 100, § 125.

45-13-05. (105) Execution, filing, and recording of statements.

  1. A statement may be filed in the office of the secretary of state. A certified copy of a statement that is filed in an office in another state may be filed in the office of the secretary of state. Either filing has the effect provided in chapters 45-13 through 45-21 with respect to partnership property located in or transactions that occur in this state.
  2. A certified copy of a statement that has been filed in the office of the secretary of state and recorded in the office for recording transfers of real property has the effect provided for recorded statements in chapters 45-13 through 45-21. A recorded statement that is not a certified copy of a statement filed in the office of the secretary of state does not have the effect provided for recorded statements in chapters 45-13 through 45-21.
  3. A statement filed by a partnership must be executed by at least two partners. Other statements must be executed by a partner or other person authorized by chapters 45-13 through 45-21. An individual who executes a statement as, or on behalf of, a partner or other person named as a partner in a statement shall personally declare under penalty of perjury that the contents of the statement are accurate.
  4. A person authorized by chapters 45-13 through 45-21 to file a statement may amend or cancel the statement by filing an amendment or cancellation that names the partnership, identifies the statement, and states the substance of the amendment or cancellation.
  5. A person who files a statement pursuant to this section shall promptly send a copy of the statement to every nonfiling partner and to any other person named as a partner in the statement. Failure to send a copy of a statement to a partner or other person does not limit the effectiveness of the statement as to a person not a partner.
  6. Any statement filed under this section must be renewed every five years from the date of the initial filing. A statement of renewal must be executed by the partnership in the same manner as previously executed. If the secretary of state finds that the statement of renewal conforms to the requirements of this section, and the proper filing fee has been paid, the secretary of state shall file the statement of renewal. If the secretary of state finds that the statement of renewal does not so conform, the secretary of state shall return the statement of renewal to the partnership for any necessary corrections. If the statement of renewal is not returned corrected within thirty days after the statement of renewal was returned for correction, the statement is subject to cancellation. If any partnership fails to file the statement of renewal, the secretary of state shall cancel the initial statement and shall mail notice of the cancellation to the last address of the principal executive office as recorded in the office of the secretary of state.
  7. A partnership shall notify the secretary of state in writing upon a change in address of the partnership’s principal executive office. A statement of renewal filed by the secretary of state which reflects a change of address of the principal executive office of the partnership may serve as a notice under this subsection.
    1. The secretary of state shall charge and collect a fee for:
      1. Filing a statement under this section, one hundred dollars.
      2. Filing an amendment under this section, forty dollars.
      3. Filing a cancellation under this section, twenty-five dollars.
      4. Filing a renewal under this section, forty dollars.
      5. Filing a request to reserve a partnership name, ten dollars.
      6. Filing a notice of transfer of a reserved partnership name, ten dollars.
      7. Filing a cancellation of reserved partnership name, ten dollars.
      8. Filing a statement of conversion or abandonment of conversion, fifty dollars and:
        1. If the organization resulting from the conversion will be a domestic organization governed by the laws of this state, then the fees provided by the governing laws to establish or register a new organization like the organization resulting from the conversion; or
        2. If the organization resulting from the conversion will be a foreign organization that will transact business in this state, then the fees provided by the governing laws to obtain a certificate of authority or register an organization like the organization resulting from the conversion.
      9. Filing a statement of merger, fifty dollars.
      10. Any record submitted for approval before the actual time of submission for filing, half of the fee provided in this section for filing the record.
    2. The officer responsible for recording transfers of real property may collect a fee for recording a statement.

Source:

S.L. 1995, ch. 430, § 3; 1999, ch. 95, § 170; 2003, ch. 85, § 142; 2005, ch. 100, § 126; 2007, ch. 101, § 74.

45-13-06. (106) Law governing internal relations.

  1. Except as otherwise provided in subsection 2, the law of the jurisdiction in which the principal executive office of the partnership is located governs relations among the partners and between the partners and the partnership.
  2. The law of this state governs relations among the partners and between the partners and the partnership and the liability of partners for an obligation of a limited liability partnership.

Source:

S.L. 1995, ch. 430, § 3; 1999, ch. 95, § 171; 2003, ch. 85, § 143.

45-13-07. (107) Partnership subject to amendment or repeal.

A partnership governed by chapters 45-13 through 45-21 is subject to any amendment to or repeal of chapters 45-13 through 45-21.

Source:

S.L. 1995, ch. 430, § 3.

CHAPTER 45-14 Nature of Partnership

45-14-01. (201) Partnership as entity.

  1. A partnership is an entity distinct from the partnership’s partners.
  2. A limited liability partnership continues to be the same entity in existence before the filing of the registration under chapter 45-22.

Source:

S.L. 1995, ch. 430, § 4; 1999, ch. 95, § 172.

Cross-References.

Ownership of property by several persons may be partnership, see N.D.C.C. § 47-02-05.

DECISIONS UNDER PRIOR LAW

Anti-Deficiency Statutes.

When general partners personally guaranty a general partnership mortgage debt, the anti-deficiency statutes are applicable, and the procedures for deficiency judgments outlined in First State Bank v. Ihringer, 217 N.W.2d 857 (1974), must be satisfied. However, because of contractual expectations, this decision will be applied prospectively. First Interstate Bank, N.A. v. Larson, 475 N.W.2d 538, 1991 N.D. LEXIS 166 (N.D. 1991).

“Association”.

“Association” connotes not only a group of two or more persons but also an intent, which need not necessarily be manifested orally or in writing, that the participants intend to be part of an association that includes all the essential elements of a partnership. Gangl v. Gangl, 281 N.W.2d 574, 1979 N.D. LEXIS 275 (N.D. 1979).

“Co-Owners”.

Co-ownership includes the sharing of profits, and generally losses, and the right of an individual to exercise control in the management of the business. Gangl v. Gangl, 281 N.W.2d 574, 1979 N.D. LEXIS 275 (N.D. 1979).

Elements of a Partnership.

Profits must be shared between the partners to constitute a partnership. Clements v. Miller, 13 N.D. 176, 100 N.W. 239, 1904 N.D. LEXIS 27 (N.D. 1904).

One of the essential elements to be shown to establish a partnership was the sharing of profits. Oelkers v. Pendergrast, 73 N.D. 63, 11 N.W.2d 116, 1943 N.D. LEXIS 62 (N.D. 1943).

Elements of a partnership are: an association, or an intention to be partners; co-ownership of, and a community of interest in, the business of the partnership; and a profit motive. Gangl v. Gangl, 281 N.W.2d 574, 1979 N.D. LEXIS 275 (N.D. 1979).

Sharing of profits is an essential element of a partnership. Union State Bank v. Cook, 63 B.R. 789 (Bankr. D.N.D. 1986).

Entrusting Control of Business to Associates.

Participants in a business venture who have the right to exercise control in the management of the business may still be partners and maintain a partnership relation when they entrust the control of the business exclusively to one of their associates. Gangl v. Gangl, 281 N.W.2d 574, 1979 N.D. LEXIS 275 (N.D. 1979).

Evidence of Partnership.

The existence of a partnership could not be established by conjecture or hearsay testimony. Oelkers v. Pendergrast, 73 N.D. 63, 11 N.W.2d 116, 1943 N.D. LEXIS 62 (N.D. 1943).

“Partnership” Defined.

Partnership is the association of two or more persons for the purpose of carrying on business together and dividing the profits between them. Degen v. Brooks, 77 N.D. 514, 43 N.W.2d 755, 1950 N.D. LEXIS 148 (N.D. 1950).

Partnership Not Shown.

Where several persons leased land as tenants in common, each person using the land as pasturage for his cattle or for his individual benefit, there was no partnership. Weber v. Bader, 42 N.D. 142, 172 N.W. 72, 1919 N.D. LEXIS 127 (N.D. 1919).

An agreement to give compensation in addition to the rate of interest for a loan of money, the compensation depending upon the amount of money received under a contract to grade roads, did not make the parties copartners in the grading of roads. Napoleon Farmers' Elevator Co. v. Dunahey, 47 N.D. 538, 182 N.W. 926, 1921 N.D. LEXIS 126 (N.D. 1921).

Partnership relationship did not exist where capital supplied, transactions carried out, records, and decisions were all attributable to only one party and there was no profit-sharing arrangement. Haggard v. Rotzien, 200 N.W.2d 112, 1972 N.D. LEXIS 137 (N.D. 1972).

Partnership relationship did not exist where, although parties conducted business for a profit and shared in the profits and there was mutual ownership of some of the business assets, there was no sharing in losses, most of the business assets were individually owned, and the individuals could not prove each had a right of control or that they were intended to have a right of control over the management of the business. Gangl v. Gangl, 281 N.W.2d 574, 1979 N.D. LEXIS 275 (N.D. 1979).

Relation Arising Out of Contract.

A partnership is to be determined from the intention of the parties as expressed in the partnership agreement or gathered from the acts and circumstances. It is a relation arising out of contract, and a partnership inter sese arises only out of the contract of the parties as expressed in their agreement or implied by their dealings with each other. Powers v. Celebrezze, 230 F. Supp. 81, 1964 U.S. Dist. LEXIS 8798 (D.N.D. 1964).

Separate Legal Entity.

Partnership is not separate legal entity but is association of persons doing business in state. 501 DeMers, Inc. v. Fink, 148 N.W.2d 820 (N.D. 1967), decided under former 45-05-05.

Collateral References.

Meaning and coverage of “book value” in partnership agreement in determining value of partner’s interest, 47 A.L.R.2d 1425, 1429.

Law Reviews.

Registration and Operation of North Dakota and Minnesota Limited Liability Partnerships, 72 N.D. L. Rev. 555 (1996).

45-14-02. (202) Formation of partnership.

  1. Except as otherwise provided in subsection 2, the association of two or more persons to carry on as co-owners a business for profit forms a partnership, whether or not the persons intend to form a partnership.
  2. An association formed under a statute other than chapters 45-13 through 45-21, a predecessor statute, or a comparable statute of another jurisdiction is not a partnership under chapters 45-13 through 45-21.
  3. In determining whether a partnership is formed, the following rules apply:
    1. Joint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not by itself establish a partnership, even if the co-owners share profits made by the use of the property.
    2. The sharing of gross returns does not by itself establish a partnership, even if the persons sharing them have a joint or common right or interest in property from which the returns are derived.
    3. A person who receives a share of the profits of a business is presumed to be a partner in the business, unless the profits were received in payment:
      1. Of a debt by installments or otherwise;
      2. For services as an independent contractor or of wages or other compensation to an employee;
      3. Of rent;
      4. Of an annuity or other retirement benefit to a beneficiary, representative, or designee of a deceased or retired partner;
      5. Of interest or other charge on a loan, even if the amount of payment varies with the profits of the business, including a direct or indirect present or future ownership of the collateral, or rights to income, proceeds, or increase in value derived from the collateral; or
      6. For the sale of the goodwill of a business or other property by installments or otherwise.

Source:

S.L. 1995, ch. 430, § 4.

Notes to Decisions

Elements of Partnership Formation.

Phrase “whether or not the persons intend to form a partnership” in N.D.C.C. § 45-14-02 was not intended to change the elements of partnership formation but was intended to clarify that a partnership is created by the association of persons whose intent is to carry on as co-owners a business for profit, regardless of their subjective intention to be “partners,” making it possible for individuals to inadvertently create a partnership despite their expressed subjective intent not to do so. Ziegler v. Dahl, 2005 ND 10, 691 N.W.2d 271, 2005 N.D. LEXIS 5 (N.D. 2005).

No Partnership Established.

No partnership was formed where there was no evidence that the owners of an ice fishing guide service intended to engage in activities that would form a partnership with plaintiff employees. The parties did not file a partnership tax return, one of the owners handled all of the administrative activities, each party provided his own equipment, all of the major decisions were made without the input and direction of the plaintiffs, plaintiffs failed to demonstrate that the discussions they had with the owner were about the management and control of the business and that their discussions affected the activities of the company, each party in the company received his own fees for guide services and the fee structure used by the company correlated more closely with an independent contractor payment system than with profit sharing among partners. Ziegler v. Dahl, 2005 ND 10, 691 N.W.2d 271, 2005 N.D. LEXIS 5 (N.D. 2005).

Sharing in the Profits.

Fact that brothers allocated each year’s profits from cattle ranch equally on partnership income tax return, with each party being liable for his share of the profits on his personal income tax return was evidence of a partnership between the parties. Tarnavsky v. Tarnavsky, 147 F.3d 674, 1998 U.S. App. LEXIS 12129 (8th Cir. N.D. 1998).

Standing to Sue.

Limited liability partnership had standing to sue in an option contract case because, as of a September 19, 2012, order, the partnership’s registration had not been forfeited, nor had the North Dakota Secretary of State revoked its registration; moreover, a website status that listed it as “not good standing” was from significantly before the registration would have been forfeited. Even if the registration had been revoked, the partnership would have continued as a legal entity with the ability to sue and be sued. Guthmiller Farms, LLP v. Guthmiller, 2013 ND 248, 840 N.W.2d 636, 2013 N.D. LEXIS 255 (N.D. 2013).

DECISIONS UNDER PRIOR LAW

Commercial Partnership.

Although lender of money received a part of the profits of a commercial partnership as interest, in addition to interest as compensation for a loan, such fact did not make the lender a partner. Napoleon Farmers' Elevator Co. v. Dunahey, 47 N.D. 538, 182 N.W. 926, 1921 N.D. LEXIS 126 (N.D. 1921).

Ostensible Partnership.

Circumstantial evidence to establish an ostensible partnership must be inconsistent with any other reasonable hypothesis than the existence of a partnership; even though in fact not partners, persons may be liable to a third person if there is an “ostensible partnership” which justifies a third party in believing a partnership exists. Schlichenmayer v. Luithle, 221 N.W.2d 77, 1974 N.D. LEXIS 182 (N.D. 1974).

An “ostensible partnership” is essentially equivalent to a partnership by estoppel as described under former section 45-06-08. Merwin v. Ziebarth, 252 N.W.2d 193, 1977 N.D. LEXIS 236 (N.D. 1977).

Partnership Relation.

A partnership relation was to be determined from the intention of the parties as inferred from their agreement and from their actions in connection with the execution thereof. Degen v. Brooks, 77 N.D. 514, 43 N.W.2d 755, 1950 N.D. LEXIS 148 (N.D. 1950).

Sharing in the Profits.

It is not necessary that there be an equal sharing of the profits to establish a partnership, as the partners are free to agree to any proportion or formula. Gangl v. Gangl, 281 N.W.2d 574, 1979 N.D. LEXIS 275 (N.D. 1979).

Sharing in the profits of a business, with exceptions contained in this section, gives rise to a prima facie, but not conclusive, presumption of a partnership. Gangl v. Gangl, 281 N.W.2d 574, 1979 N.D. LEXIS 275 (N.D. 1979).

Collateral References.

Corporation’s power to enter into partnership or joint venture, 60 A.L.R.2d 917.

Mining grubstake agreements distinguished, from partnerships, 70 A.L.R.2d 904, 907.

Law Reviews.

Registration and Operation of North Dakota and Minnesota Limited Liability Partnerships, 72 N.D. L. Rev. 555 (1996).

For Case Comment: Joint Ventures – Essential Elements: The North Dakota Supreme Court Creates a Broader Definition of Joint Ventures Sandvick v. LaCrosse, 2008 ND 77, 747 N.W.2d 519, see 85 N. Dak. L. Rev. 469 (2009).

45-14-03. (203) Partnership property.

Property acquired by a partnership is property of the partnership and not of the partners individually.

Source:

S.L. 1995, ch. 430, § 4.

Cross-References.

Exemption from attachment or execution, partnership can claim but one, see N.D.C.C. § 28-22-13.

DECISIONS UNDER PRIOR LAW

Assets Chargeable.

Although a judgment creditor of an individual partner cannot attach the debtor partner’s interest in specific partnership assets, the creditor can attach the debtor partner’s undivided partnership interest by obtaining a charging order against the partnership. Moen v. Moen, 519 N.W.2d 10, 1994 N.D. LEXIS 145 (N.D. 1994).

Assignment.

Whether an attempted assignment of specific property should be deemed to be an assignment of a partner’s interest in the partnership is a factual question of the parties’ intent under the circumstances. United Bank v. Glatt, 420 N.W.2d 743, 1988 N.D. LEXIS 47 (N.D. 1988).

Creditor’s Rights.

A joint venturer may not defeat the rights of a prior secured creditor by contributing the secured property to the venture. The creditor’s security interest given to it by one of the venture participants prior to formation of the joint venture is superior to the interests of the joint venture and its participants. Thompson v. Danner, 507 N.W.2d 550, 1993 N.D. LEXIS 200 (N.D. 1993).

Equal Shares.

Partners share equally in profits and losses, unless there was an agreement to the contrary. Shirley v. Straub, 50 N.D. 872, 198 N.W. 675, 1924 N.D. LEXIS 42 (N.D. 1924).

Partnership Agreement with Survivorship Feature.

Compliance with the statute of frauds requirement that agreement be written or with the statute of wills is not necessary to transfer the deceased partner’s interest or rights to the surviving partner where oral partnership agreement providing for such transfer is partially executed. Jones v. Jones, 310 N.W.2d 753, 1981 N.D. LEXIS 377 (N.D. 1981).

Survival of Lien.

Where sale did not satisfy entire lien, the trial court’s charging order created a continuing lien that survived the sheriff’s sale. Moen v. Moen, 519 N.W.2d 10, 1994 N.D. LEXIS 145 (N.D. 1994).

Transfer of Partner’s Interest.

A partner’s interest in the partnership, which is his share of the profits and surplus, can be unilaterally transferred by the partner. Under certain circumstances, an attempted assignment of specific partnership property may be construed to constitute a permissible transfer of that partner’s interest in the partnership. United Bank v. Glatt, 420 N.W.2d 743, 1988 N.D. LEXIS 47 (N.D. 1988).

Collateral References.

Construction, application and effect of Uniform Partnership Act, § 25(2)(b), relating to nonassignability of partner’s right in specific partnership property, 39 A.L.R.2d 1365.

“Book value”, meaning and coverage of, in partnership agreement in determining value of partner’s interest, 47 A.L.R.2d 1425, 1429.

Effect of § 26 of Uniform Partnership Act as converting realty into personalty, 80 A.L.R.2d 1107.

Partner’s breach of fiduciary duty to copartner on sale of partnership interest to another partner, 4 A.L.R.4th 1122.

Law Reviews.

Registration and Operation of North Dakota and Minnesota Limited Liability Partnerships, 72 N.D. L. Rev. 555 (1996).

45-14-04. (204) When property is partnership property.

  1. Property is partnership property if acquired in the name of:
    1. The partnership; or
    2. One or more partners with an indication in the instrument transferring title to the property of the person’s capacity as a partner or of the existence of a partnership but without an indication of the name of the partnership.
  2. Property is acquired in the name of the partnership by a transfer to:
    1. The partnership in its name; or
    2. One or more partners in their capacity as partners in the partnership, if the name of the partnership is indicated in the instrument transferring title to the property.
  3. Property is presumed to be partnership property if purchased with partnership assets, even if not acquired in the name of the partnership or of one or more partners with an indication in the instrument transferring title to the property of the person’s capacity as a partner or of the existence of a partnership.
  4. Property acquired in the name of one or more of the partners, without an indication in the instrument transferring title to the property of the person’s capacity as a partner or of the existence of a partnership and without use of partnership assets, is presumed to be separate property, even if used for partnership purposes.

Source:

S.L. 1995, ch. 430, § 4.

Notes to Decisions

Partnership Property Found

Real estate that was acquired by a partnership and was used by the partnership as collateral to secure a promissory note was property that was held separate and distinct from property held by the individual partners. Hoggarth Bros. v. Sec. State Bank of N.D. (In re Hoggarth Bros.), 2004 U.S. Dist. LEXIS 7198 (D.N.D. Apr. 22, 2004).

DECISIONS UNDER PRIOR LAW

Partnership Assets.

Fact that one partner made down payment on cattle trailer, titled it in his name and financed its purchase on promissory notes signed only by him did not prevent trailer from becoming a partnership asset. Svihl v. Gress, 216 N.W.2d 110, 1974 N.D. LEXIS 255 (N.D. 1974).

Property acquired with partnership funds is presumed to be partnership property. Eckert v. Eckert, 425 N.W.2d 914, 1988 N.D. LEXIS 163 (N.D. 1988).

Patronage Credits.

Where the vast majority of patronage credits were derived from partnership business with the cooperatives, these credits were property acquired or derived through partnership funds, assets, labor, or materials, and were presumed to be partnership property; the burden shifted to the surviving partner to establish that there was an intention between the partners that the patronage credits earned through partnership business were to be his individual property. Eckert v. Eckert, 425 N.W.2d 914, 1988 N.D. LEXIS 163 (N.D. 1988).

Property of a Partnership.

The property of a partnership consisted of all that was contributed to the common stock at the formation of the partnership and all that was subsequently acquired thereby. F. B. Scott Co. v. Scheidt, 35 N.D. 433, 160 N.W. 502, 1916 N.D. LEXIS 164 (N.D. 1916).

Collateral References.

Lessee interest of individual as becoming partnership asset of firm subsequently formed, 37 A.L.R.2d 1076.

Constructive trust in favor of partnership where one partner purchases real estate with his own funds, 44 A.L.R.2d 519.

When real estate owned by partner before formation of partnership will be deemed to have become assets of firm, 45 A.L.R.2d 1009, 1025.

CHAPTER 45-15 Relations of Partners to Persons Dealing with Partnership

45-15-01. (301) Partner agent of partnership.

Subject to the effect of a statement of partnership authority under section 45-15-03:

  1. Each partner is an agent of the partnership for the purpose of its business. An act of a partner, including the execution of an instrument in the partnership name, for apparently carrying on in the ordinary course the partnership business or business of the kind carried on by the partnership binds the partnership, unless the partner had no authority to act for the partnership in the particular matter and the person with whom the partner was dealing knew or had received a notification that the partner lacked authority.
  2. An act of a partner which is not apparently for carrying on in the ordinary course the partnership business or business of the kind carried on by the partnership binds the partnership only if the act was authorized by the other partners.

Source:

S.L. 1995, ch. 430, § 5.

Notes to Decisions

Authority.

Where two parties made contributions to an enterprise to build and sell airplanes, they both exerted a degree of control, there was a written contract, and there was an intent to share the profits based on a designer’s broad role in the operation, a designer had the authority to bind the venture under N.D.C.C. § 45-15-01(1) when he forfeited his rights to a plane pledged as security for a loan. Moreover, a lender was not required to sell the plane in a commercially reasonable manner because notice to one party was notice to the joint venture under N.D.C.C. § 45-13-02(6), and the lender had no knowledge of another party’s alleged security interest in the plane. SPW Assocs., Inc. v. Anderson, 2006 ND 159, 718 N.W.2d 580, 2006 N.D. LEXIS 164 (N.D. 2006).

DECISIONS UNDER PRIOR LAW

Agent for Partnership.

Every general partner was agent for the partnership in the transaction of its business and had authority to do whatever was necessary to carry on such business in the ordinary manner and for this purpose could bind his copartners by an agreement in writing. Union Nat'l Bank v. Western Bldg. Co., 44 N.D. 336, 175 N.W. 628, 1919 N.D. LEXIS 217 (N.D. 1919); Maercklein v. Maercklein, 64 N.D. 733, 256 N.W. 180, 1934 N.D. LEXIS 261 (N.D. 1934); Engstrom v. Larson, 77 N.D. 541, 44 N.W.2d 97, 1950 N.D. LEXIS 151 (N.D. 1950).

Authority.

The authority conferred upon a partner could be exercised by any of the partners. Benson v. Post, 9 N.W. 684, 2 Dakota 220, 1880 Dakota LEXIS 7 (Dakota 1880), aff'd, 108 U.S. 418, 2 S. Ct. 799, 27 L. Ed. 774, 1883 U.S. LEXIS 1052 (U.S. 1883).

Authority of General Partner.

Where copartners had not abandoned the business and were not incapacitated, the general partner had no authority to do any act which would make it impossible to carry on the ordinary business of the partnership. Engstrom v. Larson, 77 N.D. 541, 44 N.W.2d 97, 1950 N.D. LEXIS 151 (N.D. 1950).

A general partner had no authority to dispose of the whole of the partnership property at once, unless it consisted entirely of merchandise, where the copartners had not abandoned the business and were not incapacitated. Engstrom v. Larson, 77 N.D. 541, 44 N.W.2d 97, 1950 N.D. LEXIS 151 (N.D. 1950).

Bank Account Agreement at Variance with Partnership Agreement.

Although signature card allowed either partner to bind partnership, bank was bound by restriction in written partnership agreement limiting right of partner to bind partnership. First Nat'l Bank & Trust Co. v. Scherr, 467 N.W.2d 427, 1991 N.D. LEXIS 45 (N.D. 1991).

Chattel Mortgage.

A chattel mortgage given by a general partner upon partnership property for the purpose of binding the partnership and carrying on the partnership business was valid as between the parties to the mortgage. Maercklein v. Maercklein, 64 N.D. 733, 256 N.W. 180, 1934 N.D. LEXIS 261 (N.D. 1934).

Contractual or Implied Partnership.

Partnerships may arise from contract, or they may be implied. In re Wolsky, 53 B.R. 751, 1985 Bankr. LEXIS 5197 (Bankr. D.N.D. 1985), disapproved, In re Timbers of Inwood Forest Associates, Ltd., 793 F.2d 1380, 1986 U.S. App. LEXIS 27294 (5th Cir. Tex. 1986).

Good Will.

One partner had no power to dispose of the good will of the business. Kelly v. Pierce, 16 N.D. 234, 112 N.W. 995, 1907 N.D. LEXIS 50 (N.D. 1907); Engstrom v. Larson, 77 N.D. 541, 44 N.W.2d 97, 1950 N.D. LEXIS 151 (N.D. 1950).

Limitations on Partner’s Agency.

A partner, as an agent of the partnership, normally binds the partnership by executing any instrument that carries on the business of the partnership in the usual way. But, as with any agent, that is not so if the partner’s authority is restricted and if the restriction is known to the person with whom the partner deals. First Nat'l Bank & Trust Co. v. Scherr, 467 N.W.2d 427, 1991 N.D. LEXIS 45 (N.D. 1991).

Partner’s Liability.

A partner’s liability to a third person is largely fixed by the law of agency. First Nat'l Bank & Trust Co. v. Scherr, 467 N.W.2d 427, 1991 N.D. LEXIS 45 (N.D. 1991).

Partnership by Estoppel.

Ostensible partnership or partnership by estoppel may arise as to a third party who relies on conduct of individuals which justifiably leads the third party to believe a partnership exists. In re Wolsky, 53 B.R. 751, 1985 Bankr. LEXIS 5197 (Bankr. D.N.D. 1985), disapproved, In re Timbers of Inwood Forest Associates, Ltd., 793 F.2d 1380, 1986 U.S. App. LEXIS 27294 (5th Cir. Tex. 1986).

Sale of Stock and Good Will.

If one partner sold the stock and good will of a partnership under a contract not to engage in the same business for a certain period, he could be enjoined from re-engaging in that business even though the other partners were not bound by the contract. Hanson v. Wirtz, 52 N.D. 604, 204 N.W. 672, 1925 N.D. LEXIS 142 (N.D. 1925).

Signature of General Partner.

Where a general partner signed a mortgage which was necessary to carry on the business for which the partnership was formed, his act bound the partnership. First Guar. Bank v. Rex Theatre Co., 50 N.D. 322, 195 N.W. 564, 1923 N.D. LEXIS 97 (N.D. 1923); Maercklein v. Maercklein, 64 N.D. 733, 256 N.W. 180, 1934 N.D. LEXIS 261 (N.D. 1934).

Statute of Limitations.

The running of the statute of limitations as to all partners started anew when a liquidating partner made payment upon partnership notes after a firm’s dissolution. First State Bank v. Steinhaus, 61 N.D. 336, 237 N.W. 852, 1931 N.D. LEXIS 281 (N.D. 1931).

Vicarious Liability.

An attorney’s failure to place mineral interests in joint tenancy, as requested by the deceased client, subjecting them to probate and creditors’ claims, was a failure which fell within the ordinary course of the business of the partnership, and consequently, rendered the attorney’s partner jointly and severally liable to the plaintiff on the theory of vicarious liability. Olson v. Fraase, 421 N.W.2d 820, 1988 N.D. LEXIS 89 (N.D. 1988).

Collateral References.

Mining partnership, power of managing partner to bind firm, 24 A.L.R.2d 1359.

Libel, liability of partners or partnership for, 88 A.L.R.2d 474.

Law Reviews.

Registration and Operation of North Dakota and Minnesota Limited Liability Partnerships, 72 N.D. L. Rev. 555 (1996).

45-15-02. (302) Transfer of partnership property.

  1. Partnership property may be transferred as follows:
    1. Subject to the effect of a statement of partnership authority under section 45-15-03, partnership property held in the name of the partnership may be transferred by an instrument of transfer executed by a partner in the partnership name.
    2. Partnership property held in the name of one or more partners with an indication in the instrument transferring the property to them of their capacity as partners or of the existence of a partnership, but without an indication of the name of the partnership, may be transferred by an instrument of transfer executed by the persons in whose name the property is held.
    3. Partnership property held in the name of one or more persons other than the partnership, without an indication in the instrument transferring the property to them of their capacity as partners or of the existence of a partnership, may be transferred by an instrument of transfer executed by the persons in whose name the property is held.
  2. A partnership may recover partnership property from a transferee only if it proves that execution of the instrument of initial transfer did not bind the partnership under section 45-15-01 and:
    1. As to a subsequent transferee who gave value for property transferred under subdivision a or b of subsection 1, proves that the subsequent transferee knew or had received a notification that the person who executed the instrument of initial transfer lacked authority to bind the partnership; or
    2. As to a transferee who gave value for property transferred under subdivision c of subsection 1, proves that the transferee knew or had received a notification that the property was partnership property and that the person who executed the instrument of initial transfer lacked authority to bind the partnership.
  3. A partnership may not recover partnership property from a subsequent transferee if the partnership would not have been entitled to recover the property, under subsection 2, from any earlier transferee of the property.
  4. If a person holds all of the partners’ interests in the partnership, all of the partnership property vests in that person. The person may execute a document in the name of the partnership to evidence vesting of the property in that person and may file or record the document.

Source:

S.L. 1995, ch. 430, § 5.

Collateral References.

Constructive trust in favor of partnership where one partner purchases real estate with his own funds, 44 A.L.R.2d 519.

Declarations of partner as evidence that realty formerly owned by him was appropriated to partnership, 45 A.L.R.2d 1009, 1025.

45-15-03. (303) Statement of partnership authority.

  1. A partnership may file with the secretary of state, along with the fees provided in section 45-13-05, a statement of partnership authority which:
    1. Must include:
      1. The name of the partnership;
      2. The street address of the partnership’s principal executive office and of one office in this state, if there is one;
      3. The name and mailing address of each partner;
      4. The name of the registered agent of the partnership as provided in chapter 10-01.1 and, if a noncommercial registered agent, the address of the noncommercial registered agent in this state;
      5. The name of each partner authorized to execute an instrument transferring real property held in the name of the partnership; and
      6. The nature of business to be transacted.
    2. May state the authority, or limitations on the authority, of some or all of the partners to enter into other transactions on behalf of the partnership and any other matter.
  2. If a filed statement of partnership authority is executed pursuant to subsection 3 of section 45-13-05 and states the name of the partnership but does not contain all of the other information required by subsection 1, the statement nevertheless operates with respect to a person not a partner as provided in subsections 3 and 4.
  3. Except as otherwise provided in subsection 6, a filed statement of partnership authority supplements the authority of a partner to enter into transactions on behalf of the partnership as follows:
    1. Except for transfers of real property, a grant of authority contained in a filed statement of partnership authority is conclusive in favor of a person who gives value without knowledge to the contrary, so long as and to the extent that a limitation on that authority is not then contained in another filed statement. A filed cancellation of a limitation on authority revives the previous grant of authority.
    2. A grant of authority to transfer real property held in the name of the partnership contained in a certified copy of a filed statement of partnership authority recorded in the office for recording transfers of that real property is conclusive in favor of a person who gives value without knowledge to the contrary, so long as and to the extent that a certified copy of a filed statement containing a limitation on that authority is not then of record in the office for recording transfers of that real property. The recording in the office for recording transfers of that real property of a certified copy of a filed cancellation of a limitation on authority revives the previous grant of authority.
  4. A person not a partner is deemed to know of a limitation on the authority of a partner to transfer real property held in the name of the partnership if a certified copy of the filed statement containing the limitation on authority is of record in the office for recording transfers of that real property.
  5. Except as otherwise provided in subsections 3 and 4 and sections 45-19-04 and 45-20-05, a person not a partner is not deemed to know of a limitation on the authority of a partner merely because the limitation is contained in a filed statement.
  6. Unless earlier canceled, a filed statement of partnership authority is canceled by operation of law five years after the date on which the statement, or the most recent amendment, was filed with the secretary of state.

Source:

S.L. 1995, ch. 430, § 5; 1999, ch. 95, § 173; 2003, ch. 85, § 144; 2007, ch. 99, § 69.

45-15-03.1. Registered office — Registered agent.

A partnership that files and maintains a statement of partnership authority shall continuously maintain a registered agent as provided by chapter 10-01.1 and, if a noncommercial registered agent, the address of the noncommercial registered agent in this state.

Source:

S.L. 1999, ch. 95, § 174; 2003, ch. 85, § 145; 2007, ch. 99, § 70.

45-15-03.2. Change of registered office or agent.

  1. A partnership that files and maintains a statement of partnership authority may change the partnership’s registered office, change the partnership’s registered agent, or state a change in the name of the partnership’s registered agent as provided in chapter 10-01.1.
  2. A registered agent of a partnership may resign as provided in chapter 10-01.1.

Source:

S.L. 1999, ch. 95, § 175; 2003, ch. 85, § 146; 2007, ch. 99, § 71.

45-15-04. (304) Statement of denial.

A partner or other person named as a partner in a filed statement of partnership authority may file with the secretary of state, along with the fees provided in section 45-13-05, a statement of denial stating the name of the partnership and the fact that is being denied, which may include denial of a person’s authority or status as a partner. A statement of denial is a limitation on authority as provided in subsections 3 and 4 of section 45-15-03.

Source:

S.L. 1995, ch. 430, § 5; 2003, ch. 85, § 147.

45-15-05. (305) Partnership liable for partner’s actionable conduct.

  1. A partnership is liable for loss or injury caused to a person, or for a penalty incurred, as a result of a wrongful act or omission, or other actionable conduct, of a partner acting in the ordinary course of business of the partnership or with authority of the partnership.
  2. If, in the course of the partnership’s business or while acting with authority of the partnership, a partner receives or causes the partnership to receive money or property of a person not a partner, and the money or property is misapplied by a partner, the partnership is liable for the loss.

Source:

S.L. 1995, ch. 430, § 5.

DECISIONS UNDER PRIOR LAW

Joinder of Partners.

In an action to recover damages from a firm for a tort, all partners had to be joined as parties defendant. Staley v. Bismarck Bank, 48 N.D. 1264, 189 N.W. 236, 1922 N.D. LEXIS 172 (N.D. 1922).

Vicarious Liability.

An attorney’s failure to place mineral interests in joint tenancy, as requested by the deceased client, subjecting them to probate and creditors’ claims, was a failure which fell within the ordinary course of the business of the partnership, and consequently, rendered the attorney’s partner jointly and severally liable to the plaintiff on the theory of vicarious liability. Olson v. Fraase, 421 N.W.2d 820, 1988 N.D. LEXIS 89 (N.D. 1988).

Collateral References.

Attorneys: liability for loss caused by act of attorney’s associate as to client’s money or personal property in the possession of or entrusted to the attorney, 26 A.L.R.2d 1340, 1343.

Assault by partner, liability for, 30 A.L.R.2d 859.

Libel, liability of partners or partnership for, 88 A.L.R.2d 474.

Attorneys: vicarious liability of attorney for tort of partner in law firm, 70 A.L.R.3d 1298.

45-15-06. (306) Partner’s liability.

  1. Except as otherwise provided in subsection 2 and in chapter 45-22, all partners are liable jointly and severally for all obligations of the partnership unless otherwise agreed by the claimant or provided by law.
  2. A person admitted as a partner into an existing partnership is not personally liable for any partnership obligation incurred before the person’s admission as a partner.

Source:

S.L. 1995, ch. 430, § 5; 1999, ch. 95, § 176.

DECISIONS UNDER PRIOR LAW

Anti-Deficiency Statutes.

When general partners personally guaranty a general partnership mortgage debt, the anti-deficiency statutes are applicable, and the procedures for deficiency judgments outlined in First State Bank v. Ihringer, 217 N.W.2d 857 (1974) must be satisfied. However, because of contractual expectations, this decision will be applied prospectively. First Interstate Bank, N.A. v. Larson, 475 N.W.2d 538, 1991 N.D. LEXIS 166 (N.D. 1991).

By 1993 legislation, the Legislature removed anti-deficiency protection from a group that the Supreme Court had previously held was protected. The Legislature clearly signaled an intent not to protect guarantors with the anti-deficiency statutes. First Nat'l Bank & Trust Co. v. Anseth, 503 N.W.2d 568, 1993 N.D. LEXIS 148 (N.D. 1993).

The district court erred in dismissing a bondholder’s action on guaranties and ordering compliance with the anti-deficiency statutes. First Nat'l Bank & Trust Co. v. Anseth, 503 N.W.2d 568, 1993 N.D. LEXIS 148 (N.D. 1993).

Fraudulent Representations.

Every partner was liable for the fraudulent representations of every other partner made in the selling of partnership property as a means of effecting such sale. BRUNDAGE v. MELLON, 5 N.D. 72, 63 N.W. 209, 1895 N.D. LEXIS 6 (N.D. 1895).

Joint Liability.

The liability of partners was joint, and not joint and several. Continental Supply Co. v. Syndicate Trust Co., 52 N.D. 209, 202 N.W. 404, 1924 N.D. LEXIS 127 (N.D. 1924).

Joint Operation.

The owners of several ships who operated them jointly were liable as partners. Braithwaite v. Aikin, 1 N.D. 475, 48 N.W. 361, 1891 N.D. LEXIS 14 (N.D. 1891).

Liability Same as Principal and Agent.

The general rule was that the liability of general partners for each other’s acts was the same as that of principal and agent. Truscott v. Peterson, 78 N.D. 498, 50 N.W.2d 245, 1951 N.D. LEXIS 127 (N.D. 1951).

Vicarious Liability.

An attorney’s failure to place mineral interests in joint tenancy, as requested by the deceased client, subjecting them to probate and creditors’ claims, was a failure which fell within the ordinary course of the business of the partnership, and consequently, rendered the attorney’s partner jointly and severally liable to the plaintiff on the theory of vicarious liability. Olson v. Fraase, 421 N.W.2d 820, 1988 N.D. LEXIS 89 (N.D. 1988).

Collateral References.

Bankruptcy, debt or liability arising from withdrawal or misappropriation of partnership funds by member of firm as dischargeable in his, 16 A.L.R.2d 1151.

Liability of transferor of business operated under tradename for supplies furnished to successor by one without notice of transfer, 70 A.L.R.3d 1250.

Civil liability of one partner to another or to the partnership based on partner’s personal purchase of partnership property during existence of partnership, 37 A.L.R.4th 494.

Tort action for personal injury or property damage by partner against another partner or the partnership, 39 A.L.R.4th 139.

Joint venturers’ comparative liability for losses, in absence of express agreement, 51 A.L.R.4th 371.

Law Reviews.

Registration and Operation of North Dakota and Minnesota Limited Liability Partnerships, 72 N.D. L. Rev. 555 (1996).

45-15-07. (307) Actions by and against partnership and partners.

  1. A partnership may sue and be sued in the name of the partnership.
  2. An action may be brought against the partnership and any or all of the partners in the same action or in separate actions.
  3. A judgment against a partnership is not by itself a judgment against a partner. A judgment against a partnership may not be satisfied from a partner’s assets unless there is also a judgment against the partner.
  4. A judgment creditor of a partner may not levy execution against the assets of the partner to satisfy a judgment based on a claim against the partnership unless:
    1. A judgment based on the same claim has been obtained against the partnership and a writ of execution on the judgment has been returned unsatisfied in whole or in part;
    2. The partnership is a debtor in bankruptcy;
    3. The partner has agreed that the creditor need not exhaust partnership assets;
    4. A court grants permission to the judgment creditor to levy execution against the assets of a partner based on a finding that partnership assets subject to execution are clearly insufficient to satisfy the judgment, that exhaustion of partnership assets is excessively burdensome, or that the grant of permission is an appropriate exercise of the court’s equitable powers; or
    5. Liability is imposed on the partner by law or contract independent of the existence of the partnership.
  5. This section applies to any partnership liability or obligation resulting from a representation by a partner or purported partner under section 45-15-08.

Source:

S.L. 1995, ch. 430, § 5.

Notes to Decisions

Standing to Sue.

Limited liability partnership had standing to sue in an option contract case because, as of a September 19, 2012, order, the partnership’s registration had not been forfeited, nor had the North Dakota Secretary of State revoked its registration; moreover, a website status that listed it as “not good standing” was from significantly before the registration would have been forfeited. Even if the registration had been revoked, the partnership would have continued as a legal entity with the ability to sue and be sued. Guthmiller Farms, LLP v. Guthmiller, 2013 ND 248, 840 N.W.2d 636, 2013 N.D. LEXIS 255 (N.D. 2013).

Collateral References.

Realty: declarations of partner as evidence that realty formerly owned by him was appropriated to partnership, 45 A.L.R.2d 1009, 1025.

45-15-08. (308) Liability of purported partner.

  1. If a person, by words or conduct, purports to be a partner, or consents to being represented by another as a partner, in a partnership or with one or more persons not partners, the purported partner is liable to a person to whom the representation is made, if that person, relying on the representation, enters into a transaction with the actual or purported partnership. If the representation, either by the purported partner or by a person with the purported partner’s consent, is made in a public manner, the purported partner is liable to a person who relies upon the purported partnership even if the purported partner is not aware of being held out as a partner to the claimant. If partnership liability results, the purported partner is liable with respect to that liability as if the purported partner were a partner. If no partnership liability results, the purported partner is liable with respect to that liability jointly and severally with any other person consenting to the representation.
  2. If a person is thus represented to be a partner in an existing partnership, or with one or more persons not partners, the purported partner is an agent of persons consenting to the representation to bind them to the same extent and in the same manner as if the purported partner were a partner, with respect to persons who enter into transactions in reliance upon the representation. If all of the partners of the existing partnership consent to the representation, a partnership act or obligation results. If fewer than all of the partners of the existing partnership consent to the representation, the person acting and the partners consenting to the representation are jointly and severally liable.
  3. A person is not liable as a partner merely because the person is named by another in a statement of partnership authority.
  4. A person does not continue to be liable as a partner merely because of a failure to file a statement of dissociation or to amend a statement of partnership authority to indicate the partner’s dissociation from the partnership.
  5. Except as otherwise provided in subsections 1 and 2, persons who are not partners as to each other are not liable as partners to other persons.

Source:

S.L. 1995, ch. 430, § 5.

DECISIONS UNDER PRIOR LAW

Analysis

Banks.

Since a bank’s knowledge of defendant’s business activities or history of writing NSF checks did not create a partnership by estoppel, plaintiff’s complaint did not state a claim upon which relief could be granted for liability of the bank as a partner by estoppel of defendant. Rolin Mfg. v. Mosbrucker, 544 N.W.2d 132, 1996 N.D. LEXIS 48 (N.D. 1996).

“Ostensible Partnership”.

The doctrine of ostensible partnership rested on estoppel and, though no partnership in fact existed, one could be subject to the same liabilities as if he were a partner by holding himself out as a partner or knowingly or negligently permitting others to do so. Oelkers v. Pendergrast, 73 N.D. 63, 11 N.W.2d 116, 1943 N.D. LEXIS 62 (N.D. 1943).

An “ostensible partnership” is essentially equivalent to a partnership by estoppel. Merwin v. Ziebarth, 252 N.W.2d 193, 1977 N.D. LEXIS 236 (N.D. 1977).

Representation As a Partner.

Anyone permitting himself to be represented as a partner was liable as such to third persons to whom such representation was communicated who on faith thereof gave credit to the partnership. Union Nat'l Bank v. Western Bldg. Co., 44 N.D. 336, 175 N.W. 628, 1919 N.D. LEXIS 217 (N.D. 1919); Napoleon Farmers' Elevator Co. v. Dunahey, 47 N.D. 538, 182 N.W. 926, 1921 N.D. LEXIS 126 (N.D. 1921); International Shoe Co. v. Hawkinson, 73 N.D. 677, 18 N.W.2d 761, 1945 N.D. LEXIS 84 (N.D. 1945).

CHAPTER 45-16 Relations of Partners to Each Other and to Partnership

45-16-01. (401) Partner’s rights and duties.

  1. Each partner is deemed to have an account that is:
    1. Credited with an amount equal to the money plus the value of any other property, net of the amount of any liabilities, the partner contributes to the partnership and the partner’s share of the partnership profits; and
    2. Charged with an amount equal to the money plus the value of any other property, net of the amount of any liabilities, distributed by the partnership to the partner and the partner’s share of the partnership losses.
  2. Each partner is entitled to an equal share of the partnership profits and is chargeable with a share of the partnership losses in proportion to the partner’s share of the profits.
  3. A partnership shall reimburse a partner for payments made and indemnify a partner for liabilities incurred by the partner in the ordinary course of the business of the partnership or for the preservation of its business or property.
  4. A partnership shall reimburse a partner for an advance to the partnership beyond the amount of capital the partner agreed to contribute.
  5. A payment or advance made by a partner which gives rise to a partnership obligation under subsection 3 or 4 constitutes a loan to the partnership which accrues interest from the date of the payment or advance.
  6. Each partner has equal rights in the management and conduct of the partnership business.
  7. A partner may use or possess partnership property only on behalf of the partnership.
  8. A partner is not entitled to remuneration for services performed for the partnership, except for reasonable compensation for services rendered in winding up the business of the partnership.
  9. A person may become a partner only with the consent of all of the partners.
  10. A difference arising as to a matter in the ordinary course of business of a partnership may be decided by a majority of the partners. An act outside the ordinary course of business of a partnership and an amendment to the partnership agreement may be undertaken only with the consent of all of the partners.
  11. This section does not affect the obligations of a partnership to other persons under section 45-15-01.

Source:

S.L. 1995, ch. 430, § 6.

Notes to Decisions

In General.

N.D.C.C. § 45-16-01 does not create an evidentiary presumption, but merely supplies default provisions for a partnership agreement if the partnership agreement does not address particular issues. Carlson v. Carlson, 2011 ND 168, 802 N.W.2d 436, 2011 N.D. LEXIS 168 (N.D. 2011).

Fiduciary Breach.

Sister breached her fiduciary duty to a partner brother because the sister did not (1) give the brother access to partnership records, or (2) make timely distributions. Puklich v. Puklich, 2019 ND 154, 930 N.W.2d 593, 2019 N.D. LEXIS 153 (N.D. 2019).

Partner Entitled to Compensation.

Partnership property could be sold upon dissolution of the partnership to pay a partner for uncompensated work, notwithstanding subdivision (8) of this section, where the partnership agreement provided for reasonable compensation and the evidence supported the trial court’s finding of an informal salary arrangement; under N.D.C.C. § 45-13-03(1), a partnership agreement controls whether or not the partners are entitled to compensation for services provided to the partnership. Akerlind v. Buck, 2003 ND 169, 671 N.W.2d 256, 2003 N.D. LEXIS 183 (N.D. 2003).

Unequal Contributions.

In a partnership dispute, a district court’s finding that the partners had agreed there would be no accounting or equalization of unequal real estate contributions to pay partnership debt was not clearly erroneous. N.D.C.C. § 45-16-01 did not mandate a credit for unequal contributions when the partners had agreed otherwise. Carlson v. Carlson, 2011 ND 168, 802 N.W.2d 436, 2011 N.D. LEXIS 168 (N.D. 2011).

Unequal Services.

Unequal distribution of partnership assets based on one partner’s full time labor for twenty three years as compared with other partner’s part time bookkeeping duties on cattle ranch upheld. Tarnavsky v. Tarnavsky, 147 F.3d 674, 1998 U.S. App. LEXIS 12129 (8th Cir. N.D. 1998).

DECISIONS UNDER PRIOR LAW

Agreement.

The partnership agreement controls whether or not the partners are entitled to compensation for services provided to the partnership. First Nat'l Bank v. Candee, 488 N.W.2d 391, 1992 N.D. LEXIS 154 (N.D. 1992).

Dissolution.

Where two partners unilaterally terminated third partner’s ability to obligate the partnership in violation of partnership agreement requiring mutual agreement to dissolution, this was not an effective dissolution of the partnership. Liechty v. Liechty, 231 N.W.2d 729, 1975 N.D. LEXIS 181 (N.D. 1975).

Interest.

Under agreement prohibiting partners from sharing profit until certain partnership debts had been paid, interest accruing from partial sale of partnership assets after agreement for dissolution was partnership income and could not be applied to payment of interest on advances made by one of the partners. Svihl v. Gress, 216 N.W.2d 110, 1974 N.D. LEXIS 255 (N.D. 1974).

No Compensation As a Partner.

A partner was not entitled to compensation for services as a partner, in absence of an express contract to the contrary, or of conduct or a course of dealing from which it could be fairly implied that compensation was to be paid where unusual or unequal services were performed. Wisner v. Field, 11 N.D. 257, 91 N.W. 67, 1902 N.D. LEXIS 209 (N.D. 1902).

Profits.

All profits made by a general partner in the course of any business usually carried on by the partnership belonged to the firm. F. B. Scott Co. v. Scheidt, 35 N.D. 433, 160 N.W. 502, 1916 N.D. LEXIS 164 (N.D. 1916).

Unequal Services.

In the absence of agreement (express or implied) for compensation, unequal services would be presumed to have been rendered without expectation of reward. Olivier v. Uleberg, 74 N.D. 453, 23 N.W.2d 39, 1946 N.D. LEXIS 77 (N.D. 1946).

Where there was no evidence the partners had annually, or ever, made claims or accountings for unequal contributions or benefits, when one waited until his brother had died to make a claim covering the prior 111/2 years, absent evidence of an agreement between them to account for unequal services, such a claim is unenforceable under North Dakota partnership law. Thomas by & Through Schmidt v. Thomas (In re Estate of Thomas), 532 N.W.2d 676, 1995 N.D. LEXIS 106 (N.D. 1995).

Collateral References.

Mining partnership, power of managing partner to bind firm, 24 A.L.R.2d 1359.

Constructive trust with respect to partnership personal where one partner purchases real estate with his own funds, 44 A.L.R.2d 519.

Constructive trust with respect to partnership personal property assets knowingly received from individual partner for payment of his private debt, 45 A.L.R.2d 1211.

Meaning and coverage of “book value” in partnership agreement in determining value of partner’s interest, 47 A.L.R.2d 1425, 1429.

Salary of partner, construction and effect of agreement relating to, 66 A.L.R.2d 1023.

Real estate broker: licensed real estate broker’s right to compensation as affected by lack of license on the part of partners, coadventurers, employees or other associates, 8 A.L.R.3d 523.

Real estate agent: construction of agreement between real estate agents to share commissions, 71 A.L.R.3d 586.

Law Reviews.

Registration and Operation of North Dakota and Minnesota Limited Liability Partnerships, 72 N.D. L. Rev. 555 (1996).

45-16-02. (402) Distributions in kind.

A partner has no right to receive, and may not be required to accept, a distribution in kind.

Source:

S.L. 1995, ch. 430, § 6.

45-16-03. (403) Partner’s rights and duties with respect to information.

  1. A partnership shall keep its books and records, if any, at its chief executive office.
  2. A partnership shall provide partners and their agents and attorneys access to its books and records. It shall provide former partners and their agents and attorneys access to books and records pertaining to the period during which they were partners. The right of access provides the opportunity to inspect and copy books and records during ordinary business hours. A partnership may impose a reasonable charge, covering the costs of labor and material, for copies of documents furnished.
  3. Each partner and the partnership shall furnish to a partner, and to the legal representative of a deceased partner or partner under legal disability:
    1. Without demand, any information concerning the partnership’s business and affairs reasonably required for the proper exercise of the partner’s rights and duties under the partnership agreement or chapters 45-13 through 45-21; and
    2. On demand, any other information concerning the partnership’s business and affairs, except to the extent the demand or the information demanded is unreasonable or otherwise improper under the circumstances.

Source:

S.L. 1995, ch. 430, § 6.

Notes to Decisions

Failure to Maintain Records.

Trial court’s finding that a partner failed to provide other partners with financial information, including the partnership tax returns as required by subsection (3) of this section, was not clearly erroneous where the partner was in charge of partnership finances and failed to keep proper records. Akerlind v. Buck, 2003 ND 169, 671 N.W.2d 256, 2003 N.D. LEXIS 183 (N.D. 2003).

Collateral References.

Partner’s breach of fiduciary duty to copartner or sale of partnership interest to another partner, 4 A.L.R.4th 1122.

45-16-04. (404) General standards of partner’s conduct.

  1. The only fiduciary duties a partner owes to the partnership and the other partners are the duty of loyalty and the duty of care set forth in subsections 2 and 3.
  2. A partner’s duty of loyalty to the partnership and the other partners is limited to the following:
    1. To account to the partnership and hold as trustee for it any property, profit, or benefit derived by the partner in the conduct and winding up of the partnership business or derived from a use by the partner of partnership property, including the appropriation of a partnership opportunity;
    2. To refrain from dealing with the partnership in the conduct or winding up of the partnership business as or on behalf of a party having an interest adverse to the partnership; and
    3. To refrain from competing with the partnership in the conduct of the partnership business before the dissolution of the partnership.
  3. A partner’s duty of care to the partnership and the other partners in the conduct and winding up of the partnership business is limited to refraining from engaging in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law.
  4. A partner shall discharge the duties to the partnership and the other partners under chapters 45-13 through 45-21 or under the partnership agreement and exercise any rights consistently with the obligation of good faith and fair dealing.
  5. A partner does not violate a duty or obligation under chapters 45-13 through 45-21 or under the partnership agreement merely because the partner’s conduct furthers the partner’s own interest.
  6. A partner may lend money to and transact other business with the partnership, and as to each loan or transaction, the rights and obligations of the partner are the same as those of a person who is not a partner, subject to other applicable law.
  7. This section applies to a person winding up the partnership business as the personal or legal representative of the last surviving partner as if the person were a partner.

Source:

S.L. 1995, ch. 430, § 6.

Notes to Decisions

Fiduciary Duty.

Business partner breached his fiduciary duty to his partners under subdivision (2)(a) of this section by commingling partnership funds with his own funds and paying personal debts out of partnership funds. Akerlind v. Buck, 2003 ND 169, 671 N.W.2d 256, 2003 N.D. LEXIS 183 (N.D. 2003).

Where a joint venture existed with regard to the parties’ purchase of oil and gas leases, defendants breached their fiduciary duties of loyalty under N.D.C.C. § 45-16-04(1) by taking advantage of a joint venture opportunity when they purchased top leases without informing plaintiffs. Sandvick v. LaCrosse, 2008 ND 77, 747 N.W.2d 519, 2008 N.D. LEXIS 77 (N.D. 2008).

Findings that majority limited partners violated the fiduciary duties of good faith, fair dealing, loyalty, and care were not clearly erroneous because the majority group planned a takeover of the limited partnerships and proceeded to do so in a reckless manner, as they failed to secure unanimous consent for a new general partner after having been advised that unanimous consent was necessary, and they hired two replacement management companies without notice or a vote of all of the limited partners. Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, 751 N.W.2d 206, 2008 N.D. LEXIS 118 (N.D. 2008).

In a partnership dispute, a trial court erred by finding that fiduciary duties had not been breached based upon the failure to pay one partner’s life insurance premiums; the managing partner had a fiduciary duty of utmost good faith and loyalty to a second partner when conducting financial affairs of the partnership. The partnership agreement required that, as a form of remuneration to the partners, the partnership paid their personal life insurance premiums. Carlson v. Carlson, 2011 ND 168, 802 N.W.2d 436, 2011 N.D. LEXIS 168 (N.D. 2011).

Trial court’s findings did not analyze fiduciary duties in the context of a claim for usurpation of a partnership opportunity; the trial court did not explicitly address whether the purchase of certain land constituted a partnership opportunity. The partnership at issue was in the business of farming leased lands and its partners’ land. Knudson v. Kyllo, 2012 ND 155, 819 N.W.2d 511, 2012 N.D. LEXIS 155 (N.D. 2012).

District court did not err finding the farmer failed to establish by a preponderance of the evidence that the partner improperly usurped a partnership opportunity, because the partnership never intended to purchase the property, owning the land was not within the scope of the partnership’s business, the partnership was allowed to continue to farm the land after the sale, and the income from the lease went to the partnership. Knudson v. Kyllo, 2013 ND 102, 831 N.W.2d 763, 2013 N.D. LEXIS 109 (N.D. 2013).

DECISIONS UNDER PRIOR LAW

Dissolution.

Trailer, leased by one partner without knowledge or consent of other partner subsequent to dissolution of partnership but prior to final accounting, remained partnership asset and nonconsenting partner was entitled to share net profit derived from lease until final accounting. Svihl v. Gress, 216 N.W.2d 110, 1974 N.D. LEXIS 255 (N.D. 1974).

Fiduciary Duty.

A partner’s fiduciary duties extend to the estate of a deceased partner, and to his heirs and beneficiaries. Thomas by & Through Schmidt v. Thomas (In re Estate of Thomas), 532 N.W.2d 676, 1995 N.D. LEXIS 106 (N.D. 1995).

Highest Good Faith.

The partnership relation required the highest good faith between partners and would not permit one partner to gain any advantage over his copartners. Lay v. Emery, 8 N.D. 515, 79 N.W. 1053, 1899 N.D. LEXIS 42 (N.D. 1899).

Partners As Trustees.

The relationship of partners was confidential and fiduciary; they were trustees for each other, and there was imposed upon them the obligation of the utmost good faith and integrity in their dealings with one another with respect to the partnership affairs. Engstrom v. Larson, 77 N.D. 541, 44 N.W.2d 97, 1950 N.D. LEXIS 151 (N.D. 1950).

Collateral References.

Duty of former partner, acquiring property occupied by partnership business, to renew lease, 4 A.L.R.2d 102.

Delay as defense to action for accounting between joint adventurers, 13 A.L.R.2d 765.

Mining partnership, powers, duties and accounting responsibilities of managing partner of, 24 A.L.R.2d 1359.

Right to accounting where firm business or transactions are illegal, 32 A.L.R.2d 1345.

Venue of action for partnership dissolution, settlement or accounting, 33 A.L.R.2d 914.

Profits: accountability of partners for profits earned subsequent to death or dissolution, 55 A.L.R.2d 1391, 1417.

Goodwill: accountability for good will on dissolution of partnership, 65 A.L.R.2d 521.

Specific performance of agreement, or provisions thereof, involving partnership at will, 70 A.L.R.2d 618.

Attorneys: right to accounting between attorneys associated in practice, in absence of formal partnership, 81 A.L.R.2d 1420.

Divorce: evaluation of interest in law firm or medical partnership for purposes of division of property in divorce proceedings, 74 A.L.R.3d 621.

Partner’s breach of fiduciary duty to copartner on sale of partnership interest to another partner, 4 A.L.R.4th 1122.

When statute of limitations commences to run on right of partnership accounting, 44 A.L.R.4th 678.

Divorce and separation: goodwill in medical or dental practice as property subject to distribution on dissolution of marriage, 76 A.L.R.4th 1025.

Divorce and separation: goodwill in law practice as property subject to distribution on dissolution of marriage, 79 A.L.R.4th 171.

Law Reviews.

North Dakota Supreme Court Review, (Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, 751 N.W.2d 206 (2008)), see 85 N. Dak. L. Rev. 503 (2009).

45-16-05. (405) Actions by partnership and partners.

  1. A partnership may maintain an action against a partner for a breach of the partnership agreement, or for the violation of a duty to the partnership, causing harm to the partnership.
  2. A partner may maintain an action against the partnership or another partner for legal or equitable relief, with or without an accounting as to partnership business, to:
    1. Enforce the partner’s rights under the partnership agreement;
    2. Enforce the partner’s rights under chapters 45-13 through 45-21, including:
      1. The partner’s rights under section 45-16-01, 45-16-03, or 45-16-04;
      2. The partner’s right on dissociation to have the partner’s interest in the partnership purchased pursuant to section 45-19-01 or enforce any other right under chapter 45-18 or 45-19; or
      3. The partner’s right to compel a dissolution and winding up of the partnership business under section 45-20-01 or enforce any other right under chapter 45-20; or
    3. Enforce the rights and otherwise protect the interests of the partner, including rights and interests arising independently of the partnership relationship.
  3. The accrual of, and any time limitation on, a right of action for a remedy under this section is governed by other law. A right to an accounting upon a dissolution and winding up does not revive a claim barred by law.

Source:

S.L. 1995, ch. 430, § 6.

45-16-06. (406) Continuation of partnership beyond definite term or particular undertaking.

  1. If a partnership for a definite term or particular undertaking is continued, without an express agreement, after the expiration of the term or completion of the undertaking, the rights and duties of the partners remain the same as they were at the expiration or completion, so far as is consistent with a partnership at will.
  2. If the partners, or those of them who habitually acted in the business during the term or undertaking, continue the business without any settlement or liquidation of the partnership, they are presumed to have agreed that the partnership will continue.

Source:

S.L. 1995, ch. 430, § 6.

DECISIONS UNDER PRIOR LAW

Dissolution.

If no term was prescribed by agreement for its duration, a general partnership continued until dissolved by a partner or by operation of law. Union Nat'l Bank v. Western Bldg. Co., 44 N.D. 336, 175 N.W. 628, 1919 N.D. LEXIS 217 (N.D. 1919).

Express Will of Partner.

If an agreement prescribed no time for the duration of a partnership, a general partnership was dissolved as to all partners at the express will of any partner. Ingwalson v. Aney, 54 N.D. 627, 210 N.W. 498, 1926 N.D. LEXIS 71 (N.D. 1926).

Collateral References.

Specific performance of agreement, or provisions thereof, involving partnership at will, 70 A.L.R.2d 618.

Attorneys: right to accounting between attorneys associated in practice, in absence of formal partnership, 81 A.L.R.2d 1420.

45-16-07. Action without a meeting.

An action required or permitted to be taken at a meeting of the partners may be taken without a meeting by written action signed, or consented to by authenticated electronic communication, by all of the partners entitled to vote on the action.

  1. If the partnership agreement so provides, any action may be taken by written action signed by the partners who own voting power equal to the voting power that would be required to take the same action at a meeting of the partners at which all partners were present.
    1. When written action is permitted to be taken by less than all partners, all partners must be notified immediately of its text and effective date.
    2. Failure to provide the notice does not invalidate the written action.
    3. A partner who does not sign or consent to the written action has no liability for the action or actions taken by the written actions.
  2. The written action is effective when it has been signed, or consented to by authenticated electronic communication, by the required partners, unless a different effective time is provided in the written action.
  3. When this chapter requires or permits a certificate concerning an action to be filed with the secretary of state, the partner signing the certificate must so indicate if the action was taken under this section.

Source:

S.L. 2003, ch. 85, § 148.

45-16-08. Remote communications for partner meetings.

  1. This section shall be construed and applied to:
    1. Facilitate remote communication consistent with other applicable law; and
    2. Be consistent with reasonable practices concerning remote communication and with the continued expansion of those practices.
  2. To the extent authorized in the partnership agreement:
    1. A meeting of the partners may be held solely by any combination of means of remote communication through which the participants may participate in the meeting:
      1. If the notice of the meeting is given to every partner entitled to vote; and
      2. If the partnership interests held by the partners participating in the meeting would be sufficient to constitute a quorum at a meeting.
    2. A partner not physically present at a meeting of partners may by means of remote communication participate in a meeting of partners held at a designated place.
  3. In any meeting of partners held solely by means of remote communication under subdivision a of subsection 2, or in any meeting partners held at a designated place in which one or more partners participate by means of remote communication under subdivision b of subsection 2:
    1. The partnership shall implement reasonable measures:
      1. To verify that each person deemed present and entitled to vote at the meeting by means of remote communication is a partner; and
      2. To provide each partner participating by means of remote communication with a reasonable opportunity to participate in the meeting, including an opportunity to:
        1. Read or hear the proceedings of the meeting substantially concurrently with those proceedings;
        2. If allowed by the procedures governing the meeting, have the partner’s remarks heard or read by other participants in the meeting substantially concurrently with the making of those remarks; and
        3. If otherwise entitled, vote on matters submitted to the partners.
    2. Participation in a meeting by this means constitutes presence at the meeting.
  4. With respect to notice to partners:
    1. Any notice to partners given by the partnership under any provision of this chapter or the partnership agreement by a form of electronic communication consented to by the partner to whom the notice is given is effective when given. The notice is deemed given:
      1. If by facsimile communication, when directed to a telephone number at which the partner has consented to receive notice;
      2. If by electronic mail, when directed to an electronic mail address at which the partner has consented to receive notice;
      3. If by posting on an electronic network, on which the partner has consented to receive notice, together with separate notice to the partner of the specific posting, upon the later of:
        1. The posting; or
        2. The giving of the separate notice; or
      4. If by any other form of electronic communication by which the partners have consented to receive notice, when directed to the partner.
    2. An affidavit of the managing partner, other authorized partner, or authorized agent of the partnership, that the notice has been given by a form of electronic communication is, in the absence of fraud, prima facie evidence of the facts stated in the affidavit.
    3. Consent by a partner to notice given by electronic communication may be given in writing or by authenticated electronic communication. The partnership is entitled to rely on any consent so given until revoked by the partner. However, no revocation affects the validity of any notice given before receipt by the partnership of revocation of the consent.
  5. Any ballot, vote, authorization, or consent submitted by electronic communication under this chapter may be revoked by the partner submitting the ballot, vote, authorization, or consent so long as the revocation is received by the other partners of the partnership at or before the meeting or before an action without a meeting is effective according to section 10-16-07.
  6. Waiver of notice by a partner at a meeting by means of authenticated electronic communication may be given in the manner provided in the partnership agreement. Participation in a meeting by means of remote communication described in subdivisions a and b of subsection 2 is a waiver of notice of that meeting, except when the partner objects:
    1. At the beginning of the meeting to the transaction of business because the meeting is not lawfully called or conveyed; or
    2. Before a vote on an item of business because the item may not lawfully be considered at the meeting and does not participate in the consideration of the item at that meeting.

Source:

S.L. 2003, ch. 85, § 149.

CHAPTER 45-17 Transferees and Creditors of Partner

45-17-01. (501) Partner not co-owner of partnership property.

A partner is not a co-owner of partnership property and has no interest in partnership property which can be transferred, either voluntarily or involuntarily.

Source:

S.L. 1995, ch. 430, § 7.

Cross-References.

Property acquired by a partnership, see N.D.C.C. § 45-14-03.

45-17-02. (502) Partner’s transferable interest in partnership.

The only transferable interest of a partner in the partnership is the partner’s share of the profits and losses of the partnership and the partner’s right to receive distributions. The interest is personal property.

Source:

S.L. 1995, ch. 430, § 7.

45-17-03. (503) Transfer of partner’s transferable interest.

  1. A transfer, in whole or in part, of a partner’s transferable interest in the partnership:
    1. Is permissible;
    2. Does not by itself cause the partner’s dissociation or a dissolution and winding up of the partnership business; and
    3. Does not, as against the other partners or the partnership, entitle the transferee, during the continuance of the partnership, to participate in the management or conduct of the partnership business, to require access to information concerning partnership transactions, or to inspect or copy the partnership books or records.
  2. A transferee of a partner’s transferable interest in the partnership has a right:
    1. To receive, in accordance with the transfer, distributions to which the transferor would otherwise be entitled;
    2. To receive upon the dissolution and winding up of the partnership business, in accordance with the transfer, the net amount otherwise distributable to the transferor; and
    3. To seek under subsection 6 of section 45-20-01 a judicial determination that it is equitable to wind up the partnership business.
  3. In a dissolution and winding up, a transferee is entitled to an account of partnership transactions only from the date of the latest account agreed to by all of the partners.
  4. Upon transfer, the transferor retains the rights and duties of a partner other than the interest in distributions transferred.
  5. A partnership need not give effect to a transferee’s rights under this section until it has notice of the transfer.
  6. A transfer of a partner’s transferable interest in the partnership in violation of a restriction on transfer contained in the partnership agreement is ineffective as to a person having notice of the restriction at the time of transfer.

Source:

S.L. 1995, ch. 430, § 7.

Law Reviews.

Registration and Operation of North Dakota and Minnesota Limited Liability Partnerships, 72 N.D. L. Rev. 555 (1996).

45-17-04. (504) Partner’s transferable interest subject to charging order.

  1. On application by a judgment creditor of a partner or of a partner’s transferee and following notice to the partnership of such application, a court having jurisdiction may enter a charging order against the transferable interest of the judgment debtor for the unsatisfied amount of the judgment.
  2. A charging order constitutes a lien on the transferable interest of a judgment debtor and requires the partnership to pay over to the person to which the charging order was issued any distribution that would otherwise be paid to the judgment debtor.
  3. The partner or transferee whose transferable interest is subject to a charging order may extinguish the charging order by satisfying the judgment and filing a certified copy of the satisfaction with the court that issued the order
  4. At any time before extinguishment under subsection 3, a partnership or one or more partners whose transferable interest are not subject to the charging order may pay the full amount due under the judgment to the judgment creditor and succeed to the rights of the judgment creditor, including the charging order.
  5. Chapters 45-13 through 45-21 do not deprive a partner of a right under exemption laws with respect to the partner’s interest in the partnership.
  6. This section provides the exclusive remedy by which a person seeking to enforce a judgment against a partner or transferee may satisfy, in the capacity of a judgment creditor, the judgment from the transferable interest of the judgment debtor.
    1. No other remedy, including foreclosure of the transferable interest or a court order for directions, accounts, and inquiries the debtor partner might have made, is available to the judgment creditor attempting to satisfy the judgment out of the judgment debtor’s interest in the partnership.
    2. No creditor of a partner or transferee has any right to obtain possession of or otherwise exercise legal or equitable remedies to a property of the partnership.

Source:

S.L. 1995, ch. 430, § 7; 2017, ch. 82, § 8, effective August 1, 2017.

CHAPTER 45-18 Partner’s Dissociation

45-18-01. (601) Events causing partner’s dissociation.

A partner is dissociated from a partnership upon the occurrence of any of the following events:

  1. The partnership’s having notice of the partner’s express will to withdraw as a partner or on a later date specified by the partner.
  2. An event agreed to in the partnership agreement as causing the partner’s dissociation.
  3. The partner’s expulsion pursuant to the partnership agreement.
  4. The partner’s expulsion by the unanimous vote of the other partners if:
    1. It is unlawful to carry on the partnership business with that partner;
    2. There has been a transfer of all or substantially all of that partner’s transferable interest in the partnership, other than a transfer for security purposes, or a court order charging the partner’s interest, which has not been foreclosed;
    3. Within ninety days after the partnership notifies a corporate partner that it will be expelled because it has filed a certificate of dissolution or the equivalent, its charter has been revoked, or its right to conduct business has been suspended by the jurisdiction of its incorporation, there is no revocation of the certificate of dissolution or no reinstatement of its charter or its right to conduct business; or
    4. A partnership that is a partner has been dissolved and its business is being wound up.
  5. On application by the partnership or another partner, the partner’s expulsion by judicial determination because:
    1. The partner engaged in wrongful conduct that adversely and materially affected the partnership business;
    2. The partner willfully or persistently committed a material breach of the partnership agreement or of a duty owed to the partnership or the other partners under section 45-16-04; or
    3. The partner engaged in conduct relating to the partnership business which makes it not reasonably practicable to carry on the business in partnership with the partner.
  6. The partner’s:
    1. Becoming a debtor in bankruptcy;
    2. Executing an assignment for the benefit of creditors;
    3. Seeking, consenting to, or acquiescing in the appointment of a trustee, receiver, or liquidator of that partner or of all or substantially all of that partner’s property; or
    4. Failing, within ninety days after the appointment, to have vacated or stayed the appointment of a trustee, receiver, or liquidator of the partner or of all or substantially all of the partner’s property obtained without the partner’s consent or acquiescence, or failing within ninety days after the expiration of a stay to have the appointment vacated.
  7. In the case of a partner who is an individual:
    1. The partner’s death;
    2. The appointment of a guardian or general conservator for the partner; or
    3. A judicial determination that the partner has otherwise become incapable of performing the partner’s duties under the partnership agreement.
  8. In the case of a partner that is a trust or is acting as a partner by virtue of being a trustee of a trust, distribution of the trust’s entire transferable interest in the partnership, but not merely by reason of the substitution of a successor trustee.
  9. In the case of a partner that is an estate or is acting as a partner by virtue of being a personal representative of an estate, distribution of the estate’s entire transferable interest in the partnership, but not merely by reason of the substitution of a successor personal representative.
  10. Termination of a partner who is not an individual, partnership, corporation, trust, or estate.

Source:

S.L. 1995, ch. 430, § 8.

Notes to Decisions

Death of Partner.

Partner one became dissociated from the partnership when he died; although his role in the partnership terminated, under the partners’ agreement, the partnership could continue with the surviving partner if the deceased partner’s estate remained a partner, as here. Estate of Moore v. Moore, 2018 ND 221, 918 N.W.2d 69, 2018 N.D. LEXIS 232 (N.D. 2018).

45-18-02. (602) Partner’s power to dissociate — Wrongful dissociation.

  1. A partner has the power to dissociate at any time, rightfully or wrongfully, by express will pursuant to subsection 1 of section 45-18-01.
  2. A partner’s dissociation is wrongful only if:
    1. It is in breach of an express provision of the partnership agreement; or
    2. In the case of a partnership for a definite term or particular undertaking, before the expiration of the term or the completion of the undertaking:
      1. The partner withdraws by express will, unless the withdrawal follows within ninety days after another partner’s dissociation by death or otherwise under subsections 6 through 10 of section 45-18-01 or wrongful dissociation under this subsection;
      2. The partner is expelled by judicial determination under subsection 5 of section 45-18-01;
      3. The partner is dissociated by becoming a debtor in bankruptcy; or
      4. In the case of a partner who is not an individual, trust other than a business trust, or estate, the partner is expelled or otherwise dissociated because it willfully dissolved or terminated.
  3. A partner who wrongfully dissociates is liable to the partnership and to the other partners for damages caused by the dissociation. The liability is in addition to any other obligation of the partner to the partnership or to the other partners.

Source:

S.L. 1995, ch. 430, § 8.

45-18-03. (603) Effect of partner’s dissociation.

  1. If a partner’s dissociation results in a dissolution and winding up of the partnership business, chapter 45-20 applies, otherwise, chapter 45-19 applies.
  2. Upon a partner’s dissociation:
    1. The partner’s right to participate in the management and conduct of the partnership business terminates, except as otherwise provided in section 45-20-03;
    2. The partner’s duty of loyalty under subdivision c of subsection 2 of section 45-16-04 terminates; and
    3. The partner’s duty of loyalty under subdivisions a and b of subsection 2 of section 45-16-04 and duty of care under subsection 3 of section 45-16-04 continue only with regard to matters arising and events occurring before the partner’s dissociation, unless the partner participates in winding up the partnership’s business pursuant to section 45-20-03.

Source:

S.L. 1995, ch. 430, § 8.

CHAPTER 45-19 Partner’s Dissociation When Business Not Wound Up

45-19-01. (701) Purchase of dissociated partner’s interest.

  1. If a partner is dissociated from a partnership without resulting in a dissolution and winding up of the partnership business under section 45-20-01, the partnership shall cause the dissociated partner’s interest in the partnership to be purchased for a buyout price determined pursuant to subsection 2.
  2. The buyout price of a dissociated partner’s interest is the amount that would have been distributable to the dissociating partner under subsection 2 of section 45-20-07 if, on the date of dissociation, the assets of the partnership were sold at a price equal to the greater of the liquidation value or the value based on a sale of the entire business as a going concern without the dissociated partner and the partnership were wound up as of that date. Interest must be paid from the date of dissociation to the date of payment.
  3. Damages for wrongful dissociation under subsection 2 of section 45-18-02, and all other amounts owing, whether or not presently due, from the dissociated partner to the partnership, must be offset against the buyout price. Interest must be paid from the date the amount owed becomes due to the date of payment.
  4. A partnership shall indemnify a dissociated partner whose interest is being purchased against all partnership liabilities, whether incurred before or after the dissociation, except liabilities incurred by an act of the dissociated partner under section 45-19-02.
  5. If no agreement for the purchase of a dissociated partner’s interest is reached within one hundred twenty days after a written demand for payment, the partnership shall pay, or cause to be paid, in cash to the dissociated partner the amount the partnership estimates to be the buyout price and accrued interest, reduced by any offsets and accrued interest under subsection 3.
  6. If a deferred payment is authorized under subsection 8, the partnership may tender a written offer to pay the amount it estimates to be the buyout price and accrued interest, reduced by any offsets under subsection 3, stating the time of payment, the amount and type of security for payment, and the other terms and conditions of the obligation.
  7. The payment or tender required by subsection 5 or 6 must be accompanied by the following:
    1. A statement of partnership assets and liabilities as of the date of dissociation;
    2. The latest available partnership balance sheet and income statement, if any;
    3. An explanation of how the estimated amount of the payment was calculated; and
    4. Written notice that the payment is in full satisfaction of the obligation to purchase unless, within one hundred twenty days after the written notice, the dissociated partner commences an action to determine the buyout price, any offsets under subsection 3, or other terms of the obligation to purchase.
  8. A partner who wrongfully dissociates before the expiration of a definite term or the completion of a particular undertaking is not entitled to payment of any portion of the buyout price until the expiration of the term or completion of the undertaking, unless the partner establishes to the satisfaction of the court that earlier payment will not cause undue hardship to the business of the partnership. A deferred payment must be adequately secured and bear interest.
  9. A dissociated partner may maintain an action against the partnership, pursuant to paragraph 2 of subdivision b of subsection 2 of section 45-16-05, to determine the buyout price of that partner’s interest, any offsets under subsection 3, or other terms of the obligation to purchase. The action must be commenced within one hundred twenty days after the partnership has tendered payment or an offer to pay or within one year after written demand for payment if no payment or offer to pay is tendered. The court shall determine the buyout price of the dissociated partner’s interest, any offset due under subsection 3, and accrued interest, and enter judgment for any additional payment or refund. If deferred payment is authorized under subsection 8, the court shall also determine the security for payment and other terms of the obligation to purchase. The court may assess reasonable attorney’s fees and the fees and expenses of appraisers or other experts for a party to the action, in amounts the court finds equitable, against a party that the court finds acted arbitrarily, vexatiously, or not in good faith. The finding may be based on the partnership’s failure to tender payment or an offer to pay or to comply with subsection 7.

Source:

S.L. 1995, ch. 430, § 9.

DECISIONS UNDER PRIOR LAW

Buy-Out Agreement.

Partnership buy-out agreements may be valid when the interest is priced at less than actual value; in that situation, however, the agreement must explicitly provide the price and terms. Bohn v. Bohn Implement Co., 325 N.W.2d 281, 1982 N.D. LEXIS 362 (N.D. 1982).

Where the partnership agreement clearly and specifically states the price the surviving partners must pay for a deceased partner’s interest, the agreement will be upheld in the absence of fraud; however, if the partnership agreement is ambiguous on the matter, the surviving partners must pay the fair market value for the interest of the deceased partner. Bohn v. Bohn Implement Co., 325 N.W.2d 281, 1982 N.D. LEXIS 362 (N.D. 1982).

An intent to provide a buy-out price of less than fair market value will be upheld if that intent is explicitly stated in a written partnership agreement or, if the written agreement is ambiguous, if such an intent is proved by clear and convincing extrinsic evidence. Bohn v. Johnson, 371 N.W.2d 781, 1985 N.D. LEXIS 364 (N.D. 1985).

Collateral References.

Construction and application of § 42 of Uniform Partnership Act as to rights of parties where business is continued after a partner retires or dies, 2 A.L.R.2d 1084.

Accountability of partner or joint adventurer for profits earned subsequently to death or dissolution, 55 A.L.R.2d 1391, 1417.

Partner’s breach of fiduciary duty to copartner on sale of partnership interest to another partner, 4 A.L.R.4th 1122.

45-19-02. (702) Dissociated partner’s power to bind and liability to partnership.

  1. For two years after a partner dissociates without resulting in a dissolution and winding up of the partnership business, the partnership, including a surviving partnership under chapter 45-21, is bound by an act of the dissociated partner which would have bound the partnership under section 45-15-01 before dissociation only if at the time of entering into the transaction the other party:
    1. Reasonably believed that the dissociated partner was then a partner;
    2. Did not have notice of the partner’s dissociation; and
    3. Is not deemed to have had knowledge under subsection 4 of section 45-15-03 or notice under subsection 3 of section 45-19-04.
  2. A dissociated partner is liable to the partnership for any damage caused to the partnership arising from an obligation incurred by the dissociated partner after dissociation for which the partnership is liable under subsection 1.

Source:

S.L. 1995, ch. 430, § 9.

45-19-03. (703) Dissociated partner’s liability to other persons.

  1. A partner’s dissociation does not of itself discharge the partner’s liability for a partnership obligation incurred before dissociation. A dissociated partner is not liable for a partnership obligation incurred after dissociation, except as otherwise provided in subsection 2.
  2. A partner who dissociates without resulting in a dissolution and winding up of the partnership business is liable as a partner to the other party in a transaction entered into by the partnership, or a surviving partnership under chapter 45-21, within two years after the partner’s dissociation, only if at the time of entering into the transaction the other party:
    1. Reasonably believed that the dissociated partner was then a partner;
    2. Did not have notice of the partner’s dissociation; and
    3. Is not deemed to have had knowledge under subsection 4 of section 45-15-03 or notice under subsection 3 of section 45-19-04.
  3. By agreement with the partnership creditor and the partners continuing the business, a dissociated partner may be released from liability for a partnership obligation.
  4. A dissociated partner is released from liability for a partnership obligation if a partnership creditor, with notice of the partner’s dissociation but without the partner’s consent, agrees to a material alteration in the nature or time of payment of a partnership obligation.

Source:

S.L. 1995, ch. 430, § 9.

45-19-04. (704) Statement of dissociation.

  1. A dissociated partner or the partnership may file with the secretary of state, along with the fees provided in section 45-13-05, a statement of dissociation stating the name of the partnership and that the partner is dissociated from the partnership.
  2. A statement of dissociation is a limitation on the authority of a dissociated partner for the purposes of subsections 3 and 4 of section 45-15-03.
  3. For the purposes of subdivision c of subsection 1 of section 45-19-02 and subdivision c of subsection 2 of section 45-19-03, a person not a partner is deemed to have notice of the dissociation ninety days after the statement of dissociation is filed.

Source:

S.L. 1995, ch. 430, § 9; 2003, ch. 85, § 150.

45-19-05. (705) Continued use of partnership name.

Continued use of a partnership name, or a dissociated partner’s name as part thereof, by partners continuing the business does not of itself make the dissociated partner liable for an obligation of the partners or the partnership continuing the business.

Source:

S.L. 1995, ch. 430, § 9.

CHAPTER 45-20 Winding Up Partnership Business

45-20-01. (801) Events causing dissolution and winding up of partnership business.

A partnership is dissolved, and its business must be wound up, only upon the occurrence of any of the following events:

  1. In a partnership at will, the partnership’s having notice from a partner, other than a partner who is dissociated under subsections 2 through 10 of section 45-18-01, of that partner’s express will to withdraw as a partner, or on a later date specified by the partner.
  2. In a partnership for a definite term or particular undertaking:
    1. Within ninety days after a partner’s dissociation by death or otherwise under subsections 6 through 10 of section 45-18-01 or wrongful dissociation under subsection 2 of section 45-18-02, the express will of at least half of the remaining partners to wind up the partnership business, for which purpose a partner’s rightful dissociation under paragraph 1 of subdivision b of subsection 2 of section 45-18-02 constitutes the expression of that partner’s will to wind up the partnership business;
    2. The express will of all of the partners to wind up the partnership business; or
    3. The expiration of the term or the completion of the undertaking.
  3. An event agreed to in the partnership agreement resulting in the winding up of the partnership business.
  4. An event that makes it unlawful for all or substantially all of the business of the partnership to be continued, but a cure of illegality within ninety days after notice to the partnership of the event is effective retroactively to the date of the event for purposes of this section.
  5. On application by a partner, a judicial determination that:
    1. The economic purpose of the partnership is likely to be unreasonably frustrated;
    2. Another partner has engaged in conduct relating to the partnership business which makes it not reasonably practicable to carry on the business in partnership with that partner; or
    3. It is not otherwise reasonably practicable to carry on the partnership business in conformity with the partnership agreement.
  6. On application by a transferee of a partner’s transferable interest, a judicial determination that it is equitable to wind up the partnership business:
    1. After the expiration of the term or completion of the undertaking, if the partnership was for a definite term or particular undertaking at the time of the transfer or entry of the charging order that gave rise to the transfer; or
    2. At any time, if the partnership was a partnership at will at the time of the transfer or entry of the charging order that gave rise to the transfer.

Source:

S.L. 1995, ch. 430, § 10; 1997, ch. 103, § 222.

DECISIONS UNDER PRIOR LAW

In General.

Dissolution of the partnership by agreement of the partners or by court order are not the only ways to dissolve a partnership. Lonning v. Kurtz, 291 N.W.2d 438, 1980 N.D. LEXIS 227 (N.D. 1980).

Dissolution designates the point in time when the partners cease to carry on the business together; it is not synonymous with “winding up” or “termination” which are additional steps in completing the affairs and ending a partnership. Lonning v. Kurtz, 291 N.W.2d 438, 1980 N.D. LEXIS 227 (N.D. 1980).

Instantaneous Dissolution.

A partnership was dissolved eo instante when the partners organized a corporation. Hennessy v. Griggs, 1 N.D. 52, 44 N.W. 1010, 1890 N.D. LEXIS 7 (N.D. 1890).

Lapse of Time.

A general partnership was dissolved as to all the partners by lapse of time prescribed by agreement for its duration, and if there was no such agreement, by the express will of any partner. Ingwalson v. Aney, 54 N.D. 627, 210 N.W. 498, 1926 N.D. LEXIS 71 (N.D. 1926).

Liability to Copartners.

A general partnership could be dissolved as to himself only by the expressed will of any partner, notwithstanding his agreement for its continuance, subject, however, to liability to his copartners for any damage caused to them thereby, unless the circumstances were such as to entitle him to a judgment of dissolution. Oustad v. Hahn, 27 N.D. 334, 146 N.W. 557, 1914 N.D. LEXIS 53 (N.D. 1914).

Partnership Dissolution.

A partnership was dissolved as to all the partners by the express will of any partner. Oustad v. Hahn, 27 N.D. 334, 146 N.W. 557, 1914 N.D. LEXIS 53 (N.D. 1914).

Partnership was not dissolved on the date a petition seeking dissolution was filed because (1) dissolution did not occur until a judicial determination that the requirements for dissolution were met, (2) the partnership continued until a winding up of partnership business was complete, and (3) partnership business and property could be preserved for a reasonable time. Puklich v. Puklich, 2019 ND 154, 930 N.W.2d 593, 2019 N.D. LEXIS 153 (N.D. 2019).

Statute of Limitations.

The running of the statute of limitations as to all partners started anew when a liquidating partner made payment upon partnership notes after a firm’s dissolution. First State Bank v. Steinhaus, 61 N.D. 336, 237 N.W. 852, 1931 N.D. LEXIS 281 (N.D. 1931).

Power of Partner to Dissolve Partnership.

Power to dissolve is inherent in every partnership and no one can be forced to continue a partnership against his will; partners may by agreement provide that the partnership will continue for a definite period or particular undertaking, but, while this may make a dissolving partner liable for breach of contract, this does not limit a partner’s power to dissolve the partnership. Lonning v. Kurtz, 291 N.W.2d 438, 1980 N.D. LEXIS 227 (N.D. 1980).

Collateral References.

Statute of wills, contracts between partners for disposition of interest in partnership at death as within, 1 A.L.R.2d 1178, 1270.

Provision for disposition of partner’s interest on death of partner as affecting validity of contract, 1 A.L.R.2d 1178, 1270.

Rights and profits earned by partnership or joint adventure after death or dissolution, 55 A.L.R.2d 1391, 1417.

Good will as passing by implication upon transfer of withdrawing partners’ interest to remaining members of fund, 65 A.L.R.2d 502.

Sale or transfer of interest by partner as dissolving partnership, 75 A.L.R.2d 1036.

Law Reviews.

Registration and Operation of North Dakota and Minnesota Limited Liability Partnerships, 72 N.D. L. Rev. 555 (1996).

45-20-02. (802) Partnership continues after dissolution.

  1. Subject to subsection 2, a partnership continues after dissolution only for the purpose of winding up its business. The partnership is terminated when the winding up of its business is completed.
  2. At any time after the dissolution of a partnership and before the winding up of its business is completed, all of the partners, including any dissociating partner other than a wrongfully dissociating partner, may waive the right to have the partnership’s business wound up and the partnership terminated. In that event:
    1. The partnership resumes carrying on its business as if dissolution had never occurred, and any liability incurred by the partnership or a partner after the dissolution and before the waiver is determined as if dissolution had never occurred; and
    2. The rights of a third party accruing under subsection 1 of section 45-20-04 or arising out of conduct in reliance on the dissolution before the third party knew or received a notification of the waiver may not be adversely affected.

Source:

S.L. 1995, ch. 430, § 10.

DECISIONS UNDER PRIOR LAW

Continuation.

Partnership was not dissolved on the date a petition seeking dissolution was filed because (1) dissolution did not occur until a judicial determination that the requirements for dissolution were met, (2) the partnership continued until a winding up of partnership business was complete, and (3) partnership business and property could be preserved for a reasonable time. Puklich v. Puklich, 2019 ND 154, 930 N.W.2d 593, 2019 N.D. LEXIS 153 (N.D. 2019).

Liquidation of Partnership.

Although dissolution may be followed by liquidation of the partnership, this need not occur if the partnership agreement provides for continuation of the partnership business after dissolution and departing partners are paid their partnership contributions and share of accumulated profits. Lonning v. Kurtz, 291 N.W.2d 438, 1980 N.D. LEXIS 227 (N.D. 1980).

Collateral References.

Rights in profits earned by partnership or joint adventure after death or dissolution, 55 A.L.R.2d 1391, 1417.

Law firm: rights as to business unfinished or fees uncollected upon withdrawal or death of partner in law firm, 78 A.L.R.2d 280.

45-20-03. (803) Right to wind up partnership business.

  1. After dissolution, a partner who has not wrongfully dissociated may participate in winding up the partnership’s business, but on application of any partner, partner’s legal representative, or transferee, the district court, for good cause shown, may order judicial supervision of the winding up.
  2. The legal representative of the last surviving partner may wind up a partnership’s business.
  3. A person winding up a partnership’s business may preserve the partnership business or property as a going concern for a reasonable time, prosecute and defend actions and proceedings, whether civil, criminal, or administrative, settle and close the partnership’s business, dispose of and transfer the partnership’s property, discharge the partnership’s liabilities, distribute the assets of the partnership pursuant to section 45-20-07, settle disputes by mediation or arbitration, and perform other necessary acts.

Source:

S.L. 1995, ch. 430, § 10.

DECISIONS UNDER PRIOR LAW

Death of a Partner.

On the death of a partner the surviving partners succeeded to all the partnership property in trust for the purposes of liquidation, even though the deceased was appointed by agreement sole liquidator. MacFadden v. Jenkins, 40 N.D. 422, 169 N.W. 151, 1918 N.D. LEXIS 106 (N.D. 1918); Gardner Hotel Co. v. Hagaman, 47 N.D. 434, 182 N.W. 685, 1921 N.D. LEXIS 117 (N.D. 1921).

Liquidation.

Any member of general partnership could act in liquidation of its affairs; and if the liquidation was committed by the consent of the partners to one or more of them the others had no right to act therein. First State Bank v. Steinhaus, 61 N.D. 336, 237 N.W. 852, 1931 N.D. LEXIS 281 (N.D. 1931).

A partner authorized to act in liquidation could collect, compromise or release any debts due to the partnership, pay or compromise any claims against it, and dispose of the partnership property. First State Bank v. Steinhaus, 61 N.D. 336, 237 N.W. 852, 1931 N.D. LEXIS 281 (N.D. 1931).

Partnership was not dissolved on the date a petition seeking dissolution was filed because (1) dissolution did not occur until a judicial determination that the requirements for dissolution were met, (2) the partnership continued until a winding up of partnership business was complete, and (3) partnership business and property could be preserved for a reasonable time. Puklich v. Puklich, 2019 ND 154, 930 N.W.2d 593, 2019 N.D. LEXIS 153 (N.D. 2019).

Collateral References.

Receiver: appointment of receiver in proceedings arising out of dissolution of partnership or joint adventure, otherwise than by death of partner or at instance of creditor, 23 A.L.R.2d 583.

Powers of liquidating partners with respect to incurring of obligations, 60 A.L.R.2d 826.

Law firm: rights as to business unfinished or fees uncollected upon withdrawal or death of partner in law firm, 78 A.L.R.2d 280.

Partner’s breach of fiduciary duty to copartner on sale of partnership interest to another partner, 4 A.L.R.4th 1122.

45-20-04. (804) Partner’s power to bind partnership after dissolution.

Subject to section 45-20-05, a partnership is bound by a partner’s act after dissolution which:

  1. Is appropriate for winding up the partnership business; or
  2. Would have bound the partnership under section 45-15-01 before dissolution, if the other party to the transaction did not have notice of the dissolution.

Source:

S.L. 1995, ch. 430, § 10.

DECISIONS UNDER PRIOR LAW

Expense Incurred in Winding Up Affairs.

Where partnership property, including tractor, was sold to third party after agreement for dissolution of partnership, and one partner subsequently made partial payment of bill for repair of tractor in order to prevent purchaser’s default under security agreement to save advantageous sale, payment was appropriate under this section for winding up partnership affairs. Svihl v. Gress, 216 N.W.2d 110, 1974 N.D. LEXIS 255 (N.D. 1974).

Liability of a General Partner.

The liability of a general partner for the acts of his copartners continued after the dissolution of the partnership in favor of persons who have had dealings with and given credit to the partnership during its existence, until they had personal notice of the dissolution. Union Nat'l Bank v. Western Bldg. Co., 44 N.D. 336, 175 N.W. 628, 1919 N.D. LEXIS 217 (N.D. 1919).

Statute of Limitations.

The running of the statute of limitations as to all partners started anew when a liquidating partner made payment upon partnership notes after a firm’s dissolution. First State Bank v. Steinhaus, 61 N.D. 336, 237 N.W. 852, 1931 N.D. LEXIS 281 (N.D. 1931).

Collateral References.

Powers of liquidating partner with respect to incurring of obligations, 60 A.L.R.2d 826.

Law firm: rights as to business unfinished or fees uncollected upon withdrawal or death of partner in law firm, 78 A.L.R.2d 280.

45-20-05. (805) Statement of dissolution.

  1. After dissolution, a partner who has not wrongfully dissociated may file a statement of dissolution stating the name of the partnership and that the partnership has dissolved and is winding up its business.
  2. A statement of dissolution cancels a filed statement of partnership authority for the purposes of subsection 3 of section 45-15-03.
  3. For the purposes of sections 45-15-01 and 45-20-04, a person not a partner is deemed to have notice of the dissolution and the limitation on the partners’ authority as a result of the statement of dissolution ninety days after it is filed.
  4. After filing and, if appropriate, recording a statement of dissolution, a dissolved partnership may file and, if appropriate, record a statement of partnership authority which will operate with respect to a person not a partner as provided in subsections 3 and 4 of section 45-15-03 in any transaction, whether or not the transaction is appropriate for winding up the partnership business.

Source:

S.L. 1995, ch. 430, § 10.

45-20-06. (806) Partner’s liability to other partners after dissolution.

  1. Except as otherwise provided in subsection 2, after dissolution a partner is liable to the other partners for the partner’s share of any partnership liability incurred under section 45-20-04.
  2. A partner who, with knowledge of the dissolution, incurs a partnership liability under subsection 2 of section 45-20-04 by an act that is not appropriate for winding up the partnership business is liable to the partnership for any damage caused to the partnership arising from the liability.

Source:

S.L. 1995, ch. 430, § 10.

45-20-07. (807) Settlement of accounts and contributions among partners.

  1. In winding up a partnership’s business, the assets of the partnership, including the contributions of the partners required by this section, must be applied to discharge its obligations to creditors, including, to the extent permitted by law, partners who are creditors. Any surplus must be applied to pay in cash the net amount distributable to partners in accordance with their right to distributions under subsection 2.
  2. Each partner is entitled to a settlement of all partnership accounts upon winding up the partnership business. In settling accounts among the partners, the profits and losses that result from the liquidation of the partnership assets must be credited and charged to the partners’ accounts. The partnership shall make a distribution to a partner in an amount equal to any excess of the credits over the charges in the partner’s account. A partner shall contribute to the partnership an amount equal to any excess of the charges over the credits in the partner’s account.
  3. If a partner fails to contribute, all of the other partners shall contribute, in the proportions in which those partners share partnership losses, the additional amount necessary to satisfy the partnership obligations. A partner or partner’s legal representative may recover from the other partners any contributions the partner makes to the extent the amount contributed exceeds that partner’s share of the partnership obligations.
  4. After the settlement of accounts, each partner shall contribute, in the proportion in which the partner shares partnership losses, the amount necessary to satisfy partnership obligations that were not known at the time of the settlement.
  5. The estate of a deceased partner is liable for the partner’s obligation to contribute to the partnership.
  6. An assignee for the benefit of creditors of a partnership or a partner, or a person appointed by a court to represent creditors of a partnership or a partner, may enforce a partner’s obligation to contribute to the partnership.

Source:

S.L. 1995, ch. 430, § 10.

Notes to Decisions

In-Kind Distribution of Real Property.

Partners did not have a right to receive an in-kind distribution of the real property owned by the partnership upon winding up and dissolution, but only had a right to a cash payment of any surplus that was available after the partnership’s obligations to the creditors were satisfied. Hoggarth Bros. v. Sec. State Bank of N.D. (In re Hoggarth Bros.), 2004 U.S. Dist. LEXIS 7198 (D.N.D. Apr. 22, 2004).

Valuation.

It was not clearly erroneous to reject marketability and minority discounts when valuing a brother’s partnership interest because a dissolution of the partnership resulted in the liquidation of the partnership’s assets. Puklich v. Puklich, 2019 ND 154, 930 N.W.2d 593, 2019 N.D. LEXIS 153 (N.D. 2019).

DECISIONS UNDER PRIOR LAW

Lien upon Assets.

A partner who failed to have the judgment in his favor in a decree of dissolution made a lien upon the assets assigned to his partner lost the right to have that done. Wishek v. Hammond, 10 N.D. 72, 84 N.W. 587, 1900 N.D. LEXIS 12 (N.D. 1900).

Partnership Credits.

Partnership credits could not be taken by garnishment to pay the individual debt of a member of the firm while the partnership was a continuing one and there had been no adjustment between the partners. F. B. Scott Co. v. Scheidt, 35 N.D. 433, 160 N.W. 502, 1916 N.D. LEXIS 164 (N.D. 1916).

Collateral References.

Continuation of business: section 42 of Uniform Partnership Act as to rights of parties where business is continued after a partner retires or dies, 2 A.L.R.2d 1084.

Profits: rights in profits earned by partnership after death of partner, 55 A.L.R.2d 1391, 1417.

Law firm: rights as to business unfinished or fees uncollected upon withdrawal or death of partner in law firm, 78 A.L.R.2d 280.

Insurance: relative rights of surviving partner and estate of deceased partner in proceeds of life insurance acquired pursuant to partnership agreement, 83 A.L.R.2d 1347.

45-20-08. Omitted assets.

Title to assets remaining after payment of all debts, obligations, or liabilities and after distributions to partners may be transferred by a court in this state.

Source:

S.L. 2013, ch. 343, § 1.

CHAPTER 45-21 Conversions and Mergers

45-21-01. (901) Definitions — Conversions and mergers.

For the purposes of this chapter, unless the context otherwise requires:

  1. “Certificate of creation” means:
    1. A certificate of incorporation, if the converted organization is a corporation deemed to be incorporated under chapter 10-19.1;
    2. A certificate of organization, if the converted organization is a limited liability company deemed to be organized under chapter 10-32.1;
    3. A certificate of limited partnership, if the converted organization is a limited partnership deemed to be formed under chapter 45-10.2;
    4. The filed registration, if the converted organization is a limited liability partnership deemed to be established under chapter 45-22; or
    5. A certificate of limited liability limited partnership, if the converted organization is a limited liability limited partnership deemed to be formed under chapter 45-23.
  2. “Constituent organization” means an organization that is party to a merger.
  3. “Constituent partnership” means a constituent organization that is a partnership.
  4. “Converted organization” means the organization into which a converting organization converts pursuant to sections 45-21-01 through 45-21-07.1.
  5. “Converting organization” means an organization that converts into another organization pursuant to sections 45-21-01 through 45-21-07.1.
  6. “Converting partnership” means a converting organization that is a partnership.
  7. “Date of origin” means the date on which:
    1. A corporation that is:
      1. The converting organization was incorporated; or
      2. The converted organization is deemed to be incorporated;
    2. A limited liability company that is:
      1. The converting organization was organized; or
      2. The converted organization is deemed to be organized;
    3. A general partnership that is the converting organization was formed;
    4. A general partnership that is the converted organization was formed;
    5. A limited partnership that is:
      1. The converting organization was formed; or
      2. The converted organization is deemed to be formed;
    6. A limited liability partnership that is:
      1. The converting organization was established; or
      2. The converted organization is deemed to be established; and
    7. A limited liability limited partnership that is:
      1. The converting organization was formed; or
      2. The converted organization was deemed to be formed.
  8. “Filed registration” means the registration of a limited liability partnership that has been filed with the secretary of state.
  9. “General partner” means a partner in a partnership and a general partner in a limited partnership.
  10. “General partnership” means an organization formed by two or more persons under chapters 45-13 through 45-21.
  11. “Governing statute” means:
    1. With respect to a domestic organization, the following chapters of this code which govern the internal affairs of the organization:
      1. If a corporation, then chapter 10-19.1;
      2. If a limited liability company, then chapter 10-32.1;
      3. If a limited partnership, then chapter 45-10.2;
      4. If a general partnership, then chapters 45-13 through 45-21;
      5. If a limited liability partnership, then chapter 45-22; and
      6. If a limited liability limited partnership, then chapter 45-23; and
    2. With respect to a foreign organization, the laws of the jurisdiction under which the organization is created and under which the internal affairs of the organization are governed.
  12. “Limited partner” means a limited partner in a limited partnership.
  13. “Limited partnership” means a partnership that is formed by two or more persons under chapter 45-10.2, predecessor law, or comparable law of another jurisdiction and which has one or more general partners and one or more limited partners.
  14. “Organizational records” means for an organization that is:
    1. A corporation, its articles of incorporation and bylaws;
    2. A limited liability company, its articles of organization, operating agreement or bylaws, and any member-control agreement;
    3. A limited partnership, its partnership agreement;
    4. A general partnership, its partnership agreement;
    5. A limited liability partnership, its partnership agreement; or
    6. A limited liability limited partnership, its partnership agreement.
  15. “Originating record” means for an organization that is:
    1. A corporation, its articles of incorporation;
    2. A limited liability company, its articles of organization;
    3. A limited partnership, its certificate of limited partnership;
    4. A limited liability partnership, its registration; or
    5. A limited liability limited partnership, its certificate of limited liability limited partnership.
  16. “Ownership interest” means for an organization which is:
    1. A corporation, its shares;
    2. A limited liability company, its membership interests;
    3. A limited partnership, its partnership interests;
    4. A general partnership, its partnership interests;
    5. A limited liability partnership, its partnership interests; or
    6. A limited liability limited partnership, its partnership interests.
  17. “Partner” includes both a general partner and a limited partner.
  18. “Surviving organization” means an organization into which one or more other organizations are merged and which:
    1. May pre-exist the merger; or
    2. Be created by the merger.

Source:

S.L. 1995, ch. 430, § 11; 2005, ch. 100, § 127; 2005, ch. 384, § 9; 2015, ch. 87, §§ 32, 33, effective July 1, 2015.

45-21-02. (902) Conversion.

Other organizations may not convert to a partnership. However, a partnership may convert to another organization pursuant to sections 45-21-01 through 45-21-07.1 and a plan of conversion, if:

  1. The governing statute of the other organization authorizes the conversion;
  2. The conversion is not prohibited by the law of the jurisdiction that enacted the governing statute; and
  3. The other organization complies with its governing statute in effecting the conversion.

Source:

S.L. 1995, ch. 430, § 11; 2005, ch. 100, § 128; 2005, ch. 384, § 10.

45-21-02.1. Plan of conversion.

A plan of conversion must be in a record and must include:

  1. The name and form of the converting organization before conversion;
  2. The name and form of the converted organization after conversion;
  3. The terms and conditions of the conversion;
  4. The manner and basis for converting each ownership interest in the converting organization into ownership interests in the converted organization, or in whole or in part, into money or other property;
  5. The organizational records of the converted organization; and
  6. Any other provisions with respect to the proposed conversion that are deemed to be necessary or desirable.

Source:

S.L. 2005, ch. 100, § 129.

45-21-03. (903) Plan of conversion approval and amendment.

  1. If the converting organization is a partnership, then:
    1. A plan of conversion must be consented to by all of the partners of a converting partnership.
    2. Subject to any contractual rights, after a conversion is approved, and at any time before a filing is made under section 45-21-04, a converting partnership may amend the plan or abandon the planned conversion:
      1. As provided in the plan; and
      2. Except as prohibited by the plan, by the same consent as was required to approve the plan.
  2. If the converting organization is not a partnership, then the approval and the amendment of the plan of conversion must comply with the governing statute in effecting the conversion.

Source:

S.L. 1995, ch. 430, § 11; 2005, ch. 100, § 130.

45-21-04. (904) Statement of conversion.

  1. Upon receiving the approval required by section 45-21-03, a statement of conversion must be prepared in a record that must contain:
    1. A statement that the converting organization is being converted into another organization, including:
      1. The name of the converting organization immediately before the filing of the statement of conversion;
      2. The name to which the name of the converting organization is to be changed, which must be a name that satisfies the laws applicable to the converted organization;
      3. The form of organization that the converted organization will be; and
      4. The jurisdiction of the governing statute of the converted organization;
    2. A statement that the plan of conversion has been approved by the converting organization as provided in section 45-21-03;
    3. A statement that the plan of conversion has been approved as required by the governing statute of the converted organization;
    4. The plan of conversion without organizational records;
    5. A copy of the originating record of the converted organization; and
    6. If the converted organization is a foreign organization not authorized to transact business or conduct activities in this state, then the street and mailing address of an office which the secretary of state may use for the purposes of subsection 4 of section 45-21-04.2.
  2. The statement of conversion must be signed on behalf of the converting organization and filed with the secretary of state.
    1. If the converted organization is a domestic organization, then:
      1. The filing of the statement of conversion must also include the filing with the secretary of state of the originating record of the converted organization.
      2. Upon both the statement of conversion and the originating record of the converted organization being filed with the secretary of state, the secretary of state shall issue a certificate of conversion and the appropriate certificate of creation to the converted organization or its legal representative.
    2. If the converted organization is a foreign organization:
      1. That is transacting business or conducting activities in this state, then:
        1. The filing of the statement of conversion must include the filing with the secretary of state of an application for certificate of authority by the converted organization.
        2. Upon both the statement of conversion and the application for a certificate of authority by the converted organization being filed with the secretary of state, the secretary of state shall issue a certificate of conversion and the appropriate certificate of authority to the converted organization or the legal representative.
      2. That is not transacting business or conducting activities in this state, then upon the statement of conversion being filed with the secretary of state, the secretary of state shall issue the appropriate certificate of conversion to the converted organization or its legal representative.
  3. A converting organization that is the owner of a trademark or trade name, is a general partner named in a fictitious name certificate, is a general partner in a limited partnership or a limited liability limited partnership, or is a managing partner of a limited liability partnership that is on file with the secretary of state must change or amend the name of the converting organization to the name of the converted organization in each registration when filing the statement of conversion.

Source:

S.L. 1995, ch. 430, § 11; 2005, ch. 100, § 131.

45-21-04.1. Abandonment of conversion.

  1. If the statement of conversion has not been filed with the secretary of state, and:
    1. If the converting organization is a partnership, then subject to any contractual rights, after a conversion is approved, and at any time before the effective date of the plan, a converting partnership may abandon the planned conversion:
      1. As provided in the plan; and
      2. Except as provided otherwise by the plan, by the same consent as was required to approve the plan.
    2. If the converting organization is not a partnership, then the abandonment of the plan of conversion must comply with its governing statute.
  2. If the statement of conversion has been filed with the secretary of state, but has not yet become effective, then the converting organization shall file with the secretary of state articles of abandonment that contain:
    1. The name of the converting organization;
    2. The provision of this section under which the plan is abandoned; and
    3. If the plan is abandoned:
      1. By the consent of all of the partners, then the text of the resolution abandoning the plan; or
      2. As provided in the plan, then a statement that the plan provides for abandonment and that all conditions for abandonment set forth in the plan are met.

Source:

S.L. 2005, ch. 100, § 132.

45-21-04.2. Effective date of conversion — Effect.

  1. A conversion is effective when the filing requirements of subsection 2 of section 45-21-04 have been fulfilled or on a later date specified in the statement of conversion.
  2. With respect to the effect of conversion on the converting organization and on the converted organization:
    1. An organization that has been converted as provided in sections 45-21-01 through 45-21-07.1 is for all purposes the same entity that existed before the conversion.
    2. Upon a conversion becoming effective:
      1. If the converted organization is not a partnership, then the converted organization has all the rights, privileges, immunities, and powers, and is subject to the duties and liabilities as provided in its governing statute;
      2. All property owned by the converting organization remains vested in the converted organization;
      3. All debts, liabilities, and other obligations of the converting organization continue as obligations of the converted organization;
      4. An action or proceeding pending by or against the converting organization may be continued as if the conversion had not occurred;
      5. Except as otherwise provided by other law, all rights, privileges, immunities, and powers of the converting organization remain vested in the converted organization;
      6. Except as otherwise provided in the plan of conversion, the terms and conditions of the plan of conversion take effect; and
      7. Except as otherwise agreed, the conversion does not dissolve a converting partnership for the purposes of sections 45-20-01 through 45-20-07.
  3. When a conversion becomes effective, each ownership interest in the converting organization is deemed to be converted into ownership interests in the converted organization or, in whole or in part, into money or other property to be received under the plan.
  4. A converted organization that is a foreign organization consents to the jurisdiction of the courts of this state to enforce any obligations owed by the converting partnership, if before the conversion the converting partnership was subject to suit in this state on the obligation.
  5. A converted organization that is a foreign organization and not authorized to transact business or conduct activities in this state appoints the secretary of state as its agent for service of process for purposes of enforcing an obligation under this subsection as provided in section 10-01.1-13.

Source:

S.L. 2005, ch. 100, § 133; 2007, ch. 99, § 72.

45-21-04.3. Foreign partnership — Conversion of foreign partnership authorized to transact business in this state.

If a foreign partnership transacting business in this state converts to another organization permitted by its governing statute, and the converted organization will continue to transact business in this state, within thirty days after the conversion becomes effective, the newly created organization resulting from the conversion shall:

  1. File with the secretary of state a certified statement of conversion duly authenticated by the proper officer of the jurisdiction in which the statutory conversion was effected; and
  2. Shall obtain a certificate of authority or applicable registration in accordance with the North Dakota governing statute applicable to the converted organization.

Source:

S.L. 2011, ch. 87, § 68.

45-21-05. (905) Merger of partnerships.

  1. Pursuant to a plan of merger approved as provided in subsection 3, a partnership may be merged with one or more other organizations.
  2. The plan of merger must set forth:
    1. The name of:
      1. The partnership;
      2. Each other constituent organization proposing to merge; and
      3. The surviving organization into which the other organizations will merge;
    2. The status of each partner;
    3. The terms and conditions of the merger;
    4. The manner and basis of converting the ownership interests of each constituent organization into ownership interests or obligations of the surviving organization, or into money or other property in whole or part; and
    5. The street address of the principal executive office of the surviving organization.
  3. The plan of merger must be approved:
    1. In the case of a partnership that is a party to the merger, by all of the partners, or a number or percentage specified for merger in the partnership agreement; and
    2. In the case of a constituent organization other than a partnership that is a party to the merger, by the vote required for approval of a merger by the governing statute of the constituent organization in the jurisdiction in which the constituent organization is organized.
  4. After a plan of merger is approved and before the merger takes effect, the plan may be amended or abandoned as provided in the plan.
  5. The merger takes effect on the later of:
    1. The approval of the plan of merger by all constituent organizations, as provided in subsection 3;
    2. The filing of all records required by law to be filed as a condition to the effectiveness of the merger; or
    3. Any effective date specified in the plan of merger.

Source:

S.L. 1995, ch. 430, § 11; 2003, ch. 85, § 151; 2005, ch. 100, § 134.

45-21-06. (906) Effect of merger.

  1. When a merger takes effect:
    1. The separate existence of each constituent partnership that is a party to the merger, other than the surviving organization, ceases;
    2. All property owned by each of the constituent partnerships vests in the surviving organization;
    3. All obligations of each constituent partnership become the obligations of the surviving organization; and
    4. An action or proceeding pending against a constituent partnership may be continued as if the merger had not occurred, or the surviving organization may be substituted as a party to the action or proceeding.
  2. The secretary of state of this state is the agent for service of process in an action or proceeding against a surviving foreign partnership to enforce an obligation of a partnership that is a constituent organization. The surviving organization shall promptly notify the secretary of state of the mailing address of its principal executive office and of any change of address. Upon receipt of process, the secretary of state shall mail a copy of the process to the surviving foreign partnership as provided in section 10-01.1-13.
  3. A general partner of the surviving partnership is liable for:
    1. All obligations of a party to the merger for which the general partner was personally liable before the merger;
    2. All other obligations of the surviving organization incurred before the merger by a constituent organization, but those obligations may be satisfied only out of property of the surviving organization; and
    3. All obligations of the surviving organization incurred after the merger takes effect.
  4. If the obligations incurred before the merger by a constituent partnership are not satisfied out of the property of the surviving organization, then the general partners of the constituent partnership immediately before the effective date of the merger shall contribute the amount necessary to satisfy the obligations of the constituent partnership to the surviving organization, in the manner provided in section 45-20-07.
  5. A partner of a constituent partnership who does not receive an ownership interest of the surviving organization is dissociated from the partnership, of which that partner was a partner, as of the date the merger takes effect. The surviving organization shall cause the ownership interest of the partner in the constituent partnership to be purchased under section 45-19-01 or another statute specifically applicable to that ownership interest of that partner with respect to a merger. The surviving organization is bound under section 45-19-02 by an act of a general partner dissociated under this subsection, and the partner is liable under section 45-19-03 for transactions entered into by the surviving organization after the merger takes effect.

Source:

S.L. 1995, ch. 430, § 11; 2003, ch. 85, § 152; 2005, ch. 100, § 135; 2007, ch. 99, § 73.

45-21-07. (907) Statement of merger.

  1. After a merger, the surviving organization may file a statement that one or more partnerships or other constituent organizations have merged into the surviving organization.
  2. A statement of merger must be accompanied by the plan of merger without organizational records and must contain:
    1. The name of:
      1. The partnership;
      2. Each other constituent organization that is a party to the merger; and
      3. The surviving organization into which the other constituent organizations were merged;
    2. The form of organization that the surviving organization will be;
    3. The jurisdiction of the governing statute of the surviving organization; and
    4. The street address of the principal executive office of the surviving organization and of an office in this state, if any.
  3. Except as otherwise provided in subsection 4, for the purposes of section 45-15-02, property of the surviving organization which before the merger was held in the name of another party to the merger is property held in the name of the surviving organization upon filing a statement of merger.
  4. For the purposes of section 45-15-02, real property of the surviving organization which before the merger was held in the name of another constituent organization is property held in the name of the surviving organization upon recording a certified copy of the statement of merger in the office for recording transfers of that real property.
  5. A filed and, if appropriate, recorded statement of merger, signed and declared to be accurate pursuant to subsection 3 of section 45-13-05, stating the name of a constituent partnership that is a constituent organization in whose name property was held before the merger and the name of the surviving organization, but not containing all of the other information required by subsection 2, operates with respect to the constituent partnership and the surviving organization to the extent provided in subsections 3 and 4.

Source:

S.L. 1995, ch. 430, § 11; 2003, ch. 85, § 153; 2005, ch. 100, § 136.

45-21-07.1. Liability of general partner after conversion or merger.

  1. A conversion or merger under this chapter does not discharge any liability under sections 45-15-06, 45-15-07, and 45-15-08 of a person that was a general partner in or dissociated as a general partner from a converting or constituent partnership, but:
    1. The provisions of this chapter pertaining to the collection or discharge of the liability continue to apply to the liability;
    2. For the purposes of applying those provisions, the converted or surviving organization is deemed to be the converting or constituent partnership; and
    3. If a person is required to pay any amount under this subsection, then:
      1. The person has a right of contribution from each other person that was liable as a general partner under section 45-15-06 when the obligation was incurred and has not been released from the obligation under section 45-20-06; and
      2. The contribution due from each of those persons is in proportion to the right to receive distributions in the capacity of general partner in effect for each of those persons when the obligations were incurred as provided in section 45-20-07.
  2. In addition to any other liability provided by law:
    1. A person that immediately before a conversion or merger became effective was a general partner in a converting or constituent partnership is personally liable for each obligation of the converted or surviving organization arising from a transaction with a third party after the conversion or merger becomes effective, if, at the time the third party enters into the transaction, the third party:
      1. Does not have notice of the conversion or merger; and
      2. Reasonably believes that:
        1. The converted or surviving organization or business is the converting or constituent partnership; and
        2. The person is a general partner in the converting or constituent partnership; and
    2. A person that was dissociated as a general partner from a converting or constituent partnership before the conversion or merger became effective is personally liable for each obligation of the converted or surviving organization arising from a transaction with a third party after the conversion or merger becomes effective, if at the time the third party enters into the transaction less than two years have passed since the person dissociated as a general partner and the third party:
      1. Does not have notice of the dissociation;
      2. Does not have notice of the conversion or merger; and
      3. Reasonably believes that:
        1. The converted or surviving organization or business is the converting or constituent partnership; and
        2. The person is a general partner in the converting or constituent partnership.

Source:

S.L. 2005, ch. 100, § 137.

45-21-08. (908) Nonexclusive.

This chapter is not exclusive. Partnerships or limited partnerships may be converted or merged in any other manner provided by law.

Source:

S.L. 1995, ch. 430, § 11.

CHAPTER 45-22 Limited Liability Partnerships

45-22-01. Definitions.

In this chapter, unless the context otherwise requires:

  1. “Address” means:
    1. In the case of a registered office or principal executive office, the mailing address, including the zip code, of the actual office location which may not be only a post-office box; and
    2. In all other cases, the mailing address, including the zip code.
  2. “Authenticated electronic communication” means:
    1. That the electronic communication is delivered:
      1. To the principal place of business of the limited liability partnership; or
      2. To a partner or agent of the limited liability partnership authorized by the limited liability partnership to receive the electronic communication; and
    2. That the electronic communication sets forth information from which the limited liability partnership can reasonably conclude that the electronic communication was sent by the purported sender.
  3. “Domestic limited liability partnership” means a partnership formed by two or more persons under this chapter with a registration in effect and which is not a foreign limited liability partnership.
  4. “Domestic organization” means an organization created under the laws of this state.
  5. “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
  6. “Electronic communication” means any form of communication, not directly involving the physical transmission of paper:
    1. That creates a record that may be retained, retrieved, and reviewed by a recipient of the communication; and
    2. That may be directly reproduced in paper form by the recipient through an automated process.
  7. “Electronic record” means a record created, generated, sent, communicated, received, or stored by electronic means.
  8. “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and signed or adopted by a person with the intent to sign the record.
  9. “Filed with the secretary of state” means, except as otherwise permitted by law or rule:
    1. That a record meeting the applicable requirements of this chapter, together with the fees provided in section 45-22-23, has been delivered or communicated to the secretary of state by a method or medium of communication acceptable by the secretary of state and has been determined by the secretary of state to conform to law.
    2. That the secretary of state did then:
      1. Record the actual date on which the record was filed, and if different, the effective date of filing; and
      2. Record the record in the office of the secretary of state.
  10. “Foreign limited liability partnership” means a partnership formed by two or more persons as a limited liability partnership under the laws of a jurisdiction other than this state which is in good standing in its jurisdiction of origin.
  11. “Foreign organization” means an organization created under laws other than the laws of this state for a purpose for which the organization may be created under the laws of this state.
  12. “Jurisdiction of origin” means the jurisdiction in which the limited liability partnership status of the foreign limited liability partnership was created.
  13. “Limited liability partnership” means a domestic limited liability partnership or a foreign limited liability partnership.
  14. “Managing partner” means a partner charged with the management of the limited liability partnership or foreign limited liability partnership in this state and if no partners are so specifically designated, then all partners.
  15. “Notice”:
    1. Is given to a limited liability partnership:
      1. When in writing and mailed or delivered to a managing partner at the registered office or principal executive office of the limited liability partnership; or
      2. When given by a form of electronic communication consented to by a managing partner of the limited liability partnership to which the notice is given if by:
        1. Facsimile communication, when directed to a telephone number at which a managing partner of the limited liability partnership or the partner has consented to receive notice.
        2. Electronic mail, when directed to an electronic mail address at which a managing partner of the limited liability partnership has consented to receive notice.
        3. Posting on an electronic network on which a managing partner of the limited liability partnership has consented to receive notice, together with separate notice to the limited liability partnership if the specific posting, upon the later of:
          1. The posting; or
          2. The giving of the separate notice.
        4. Any other form of electronic communication by which a managing partner of the limited liability partnership has consented to receive notice, when directed to the limited liability partnership.
    2. Is given to a partner of the limited liability partnership:
      1. When in writing and mailed or delivered to the partner at the registered office or at the principal executive office of the limited liability partnership; or
      2. When given by a form of electronic communication consented to by the partner to which the notice is given if by:
        1. Facsimile communication, when directed to a telephone number at which the partner has consented to receive notice;
        2. Electronic mail, when directed to an electronic mail address at which the partner has consented to receive notice;
        3. Posting on an electronic network on which the partner has consented to receive notice, together with separate notice to the partner of the specific posting, upon the later of:
          1. The posting; or
          2. The giving of the separate notice; or
        4. Any other form of electronic communication by which the partner has consented to receive notice, when directed to the partner.
    3. Is given in all other cases:
      1. When mailed to the person at an address designated by the person or at the last-known address of the person;
      2. When deposited with a nationally recognized overnight delivery service for overnight delivery or, if overnight delivery to the person is not available, for delivery as promptly as practicable, to the person at an address designated by the person or at the last-known address of the person;
      3. When handed to the person;
      4. When left at the office of the person with a clerk or other person in charge of the office or:
        1. If there is no one in charge, when left in a conspicuous place in the office; or
        2. If the office is closed or the person to be notified has no office, when left at the dwelling house or usual place of abode of the person with some person of suitable age and discretion then residing there;
      5. When given by a form of electronic communication consented to by the person to whom the notice is given if by:
        1. Facsimile communication, when directed to a telephone number at which the person has consented to receive notice;
        2. Electronic mail, when directed to an electronic mail address at which the person has consented to receive notice;
        3. Posting on an electronic network on which the person has consented to receive notice, together with separate notice to the person of the specific posting, upon the later of:
          1. The posting; or
          2. The giving of the separate notice; or
        4. Any other form of electronic communication by which the person has consented to receive notice, when directed to the person; or
      6. When the method is fair and reasonable when all circumstances are considered.
    4. Is given by mail when deposited in the United States mail with sufficient postage affixed.
    5. Is given by deposit for delivery when deposited for delivery as provided in paragraph 2 of subdivision c, after having made sufficient arrangements for payment by the sender.
    6. Is deemed received when it is given.
  16. “Organization”:
    1. Means, whether domestic or foreign, a corporation, limited liability company, general partnership, limited partnership, limited liability partnership, limited liability limited partnership, or any other person subject to a governing statute; but
    2. Excludes:
      1. A nonprofit corporation, whether a domestic nonprofit corporation which is incorporated under chapter 10-33 or a foreign nonprofit corporation which is incorporated in another jurisdiction; or
      2. Any nonprofit limited liability company, whether a domestic nonprofit limited liability company which is organized under chapter 10-36 or a foreign nonprofit limited liability company which is organized in another jurisdiction.
  17. “Originally registered” and “original registration” means the record establishing the limited liability partnership status of the foreign limited liability partnership in the jurisdiction of origin of the foreign limited liability partnership.
  18. “Partnership” means an association of two or more persons to carry on as co-owners of a business for profit formed under chapters 45-13 through 45-21, predecessor law, or comparable law of another jurisdiction.
  19. “Principal executive office” means:
    1. An office from which the limited liability partnership conducts business; or
    2. If the limited liability partnership has no office from which the limited liability partnership conducts business, the registered office of the limited liability partnership.
  20. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
  21. “Register” means the act of filing with the secretary of state which causes:
    1. A domestic limited liability partnership to be created; or
    2. A foreign limited liability partnership to be authorized to transact business in this state.
  22. “Registered office” means the place in this state designated as the registered office of the limited liability partnership or foreign limited liability partnership.
  23. “Registration” means the record which, when filed with the secretary of state, causes:
    1. A domestic limited liability partnership to be created; or
    2. A foreign limited liability partnership to be authorized to do business in this state.
  24. “Signed” means:
    1. That the signature of a person which may be a facsimile affixed, engraved, printed, placed, stamped with indelible ink, transmitted by telecommunication or electronically, or in any other manner reproduced on the record, is placed on a record with the present intention to authenticate that record; and
    2. With respect to a record required by this chapter to be filed with the secretary of state means that:
      1. The record is signed by a person authorized to do so by this chapter, or by or pursuant to an agreement among the partners, or by a resolution approved by the affirmative vote of the required proportion or number of partners; and
      2. The signature and the record are communicated by a method or medium of communication acceptable by the secretary of state.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 223; 1999, ch. 95, § 177; 2003, ch. 85, § 154; 2005, ch. 100, § 138; 2007, ch. 354, § 26; 2007, ch. 101, § 75; 2009, ch. 106, § 71.

Law Reviews.

Registration and Operation of North Dakota and Minnesota Limited Liability Partnerships, 72 N.D. L. Rev. 555 (1996).

45-22-01.1. Legal recognition of electronic records and electronic signatures. [Repealed]

Repealed by S.L. 2005, ch. 100, § 156.

45-22-02. Applicability of chapters 45-13 through 45-21.

In any case not provided for in this chapter, chapters 45-13 through 45-21 govern. If any provision of this chapter conflicts with chapters 45-13 through 45-21, that provision of this chapter takes precedence.

Source:

S.L. 1995, ch. 55, § 29.

45-22-03. Registration.

  1. A partnership may become a limited liability partnership pursuant to this section.
    1. In determining whether the underlying partnership necessary for registration as a domestic limited liability partnership has been formed, the rules set forth in section 45-14-02 apply.
    2. The terms and conditions on which a partnership becomes a limited liability partnership must be approved by the necessary vote of partners required to amend the partnership agreement, unless the partnership agreement contains a requirement that the vote of a greater number of partners is necessary to amend provisions relating to the partners’ obligations to contribute to the partnership, in which case by the necessary vote of the partners to amend these provisions.
  2. After the approval required by subdivision b of subsection 1, a partnership shall become a limited liability partnership by filing a registration with the secretary of state. A domestic limited liability partnership or foreign limited liability partnership that is transacting business in this state must have in effect and filed with the secretary of state a registration that complies with this section. From the effective date of filing, the registration of:
    1. A domestic limited liability partnership establishes the status as a domestic limited liability partnership; and
    2. A foreign limited liability partnership authorizes the transaction of business in this state.
  3. A registration, signed by a managing partner, must contain:
    1. With respect to a domestic limited liability partnership:
      1. The name of the domestic limited liability partnership.
      2. The nature of the business to be transacted in this state.
      3. A statement indicating whether the limited liability partnership will be engaged in farming or ranching in this state or owning or leasing land in this state which is used for farming or ranching.
      4. The address of the principal executive office of the domestic limited liability partnership.
      5. The name of the registered agent of the domestic limited liability partnership as provided in chapter 10-01.1 and, if a noncommercial registered agent, the address of that noncommercial registered agent in this state.
      6. The name and address of each managing partner and, if the limited liability partnership will be engaged in farming or ranching in this state or owning or leasing land in this state which is used for farming or ranching, then the names and addresses of all partners.
      7. A statement that the partnership elects to be a limited liability partnership.
      8. A deferred effective date, if any.
    2. With respect to a foreign limited liability partnership:
      1. The name of the foreign limited liability partnership and, if different, the name under which the foreign limited liability partnership proposes to transact business in this state.
      2. The jurisdiction of origin.
      3. The date on which the foreign limited liability partnership expires in the jurisdiction of origin.
      4. The nature of the business to be transacted in this state.
      5. A statement indicating whether the foreign limited liability partnership will be engaged in farming or ranching in this state or owning or leasing land in this state which is used for farming or ranching.
      6. The address of the principal executive office of the foreign limited liability partnership.
      7. The name of the registered agent of the foreign limited liability partnership as provided in chapter 10-01.1 and, if a noncommercial registered agent, the address of that registered agent in this state.
      8. The name and address of each managing partner and, if the foreign limited liability partnership will be engaged in farming or ranching in this state or owning or leasing land in this state which is used for farming or ranching, then the names and addresses of all partners.
      9. An acknowledgment that the status of the foreign limited liability partnership in this state will automatically expire unless the foreign limited liability partnership continuously maintains limited liability partnership status in the jurisdiction of origin.
    3. The registration must be accompanied by payment of the fees provided in section 45-22-22 together with a certificate of good standing or certificate of existence authenticated by the registering officer of the state or country where the foreign limited liability partnership is originally registered.
  4. An original of the registration must be filed with the secretary of state.
    1. If the secretary of state finds the registration conforms to law and the fees provided in section 45-22-22 are paid, the secretary of state shall endorse on the original the word “filed” and the day, month, and year of the filing and shall file the original in the office of the secretary of state.
    2. If any statement in the registration is false when made or becomes inaccurate after the registration is filed, making the registration false or inaccurate in any respect, the limited liability partnership shall file promptly with the secretary of state an amended or corrected registration. If only a change of address of the principal executive office is required, an amended or corrected registration need not be filed. However, the change of address of the principal executive office must be reported in the next annual report filed after the change or be submitted in writing to the secretary of state without a filing fee.
    3. In the case of a change in a foreign limited liability partnership’s name, a foreign limited liability partnership shall file promptly with the secretary of state a certificate to that effect authenticated by the proper officer of the jurisdiction of origin.
    4. In the case of a termination or merger:
      1. A foreign limited liability partnership that is not the surviving organization need not file an amended registration but, within thirty days after the merger or termination becomes effective, shall file with the secretary of state a certificate to that effect authenticated by the proper officer of the foreign limited liability partnership’s jurisdiction of origin.
      2. It is not necessary for any foreign limited liability partnership, which is the surviving organization in a merger, to procure a new or amended registration unless the name of the foreign limited liability partnership is changed or unless the foreign limited liability partnership desires to pursue in this state purposes other than those which the foreign limited liability partnership is authorized to transact in this state.
  5. A managing partner must be separately registered with the secretary of state at the time of the registration of a domestic or foreign limited liability partnership if that managing partner is a domestic or foreign:
    1. Corporation;
    2. Limited liability company;
    3. Limited partnership;
    4. Limited liability partnership;
    5. Limited liability limited partnership; or
    6. Partnership using a fictitious name.
  6. With respect to a domestic limited liability partnership:
    1. A partnership’s decision to file a registration is an ordinary matter that may be decided by a majority of the partners.
    2. The decision to withdraw a registration may be undertaken only with the consent of all partners or as otherwise expressly provided in a written partnership agreement.
  7. A partnership that registers as a limited liability partnership is not deemed to have dissolved as a result of the registration.
  8. If a limited liability partnership or foreign limited liability partnership dissolves without winding up business or changes the jurisdiction of origin, a partnership that is a successor to the limited liability partnership or foreign limited liability partnership and which intends to be a limited liability partnership or foreign limited liability partnership is not required to file a new registration or renewal and is deemed to have filed any documents required or permitted under this section which were filed by the predecessor partnership.
  9. The status of a partnership as a limited liability partnership is effective on the later of the filing of the registration or a date specified in the registration which is within ninety days after the filing of the registration.
    1. The status of a partnership as a domestic limited liability partnership and the authority of a foreign limited liability partnership to transact business in this state remains effective, regardless of changes in the partnership, until the partnership’s registration is voluntarily withdrawn pursuant to section 45-22-13 or revoked by the secretary of state pursuant to sections 45-22-16 and 45-22-21.1.
    2. The status of a partnership as a limited liability partnership and the liability of the partnership’s partners for obligation of the partnership is not affected by errors or later changes in the information required to be contained in the registration under subsection 3.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 51, § 34; 1997, ch. 103, § 224; 1999, ch. 95, § 178; 2001, ch. 403, § 1; 2003, ch. 85, § 156; 2005, ch. 385, § 1; 2007, ch. 99, § 74; 2009, ch. 106, § 72; 2011, ch. 87, § 69; 2015, ch. 86, § 21, effective July 1, 2015; 2019, ch. 92, § 17, effective August 1, 2019.

Law Reviews.

Registration and Operation of North Dakota and Minnesota Limited Liability Partnerships, 72 N.D. L. Rev. 555 (1996).

45-22-04. Limited liability partnership — Name. [Contingent effective date – See note]

  1. The name of a limited liability partnership:
    1. Must be expressed in letters or characters in the English language as those letters or characters appear in the American standard code for information interchange (ASCII) table.
    2. Must contain the words “limited liability partnership” or the abbreviation “L.L.P.” or the abbreviation “LLP”, either of which abbreviations may be used interchangeably for all purposes authorized by this chapter, including real estate matters, contracts, and filings with the secretary of state.
    3. May not contain the word “corporation”, “company”, “incorporated”, “limited liability company”, “limited partnership”, “limited liability limited partnership”, or an abbreviation of these words.
    4. May not contain a word or phrase indicating or implying the limited liability partnership:
      1. Is formed for a purpose other than:
        1. A lawful purpose for which a limited liability partnership may be formed under this chapter; or
        2. For a purpose stated in its registration; or
      2. May not be formed under this chapter.
    5. Must be distinguishable in the records of the secretary of state from:
      1. The name, whether foreign and authorized to do business in this state or domestic, unless there is filed with the registration a record that complies with subsection 3, of:
        1. Another limited liability partnership;
        2. A corporation;
        3. A limited liability company;
        4. A limited partnership; or
        5. A limited liability limited partnership;
      2. A name, the right to which is at the time of registration reserved in the manner provided in section 10-19.1-14, 10-32.1-12, 10-33-11, 45-10.2-11, 45-13-04.2, or 45-22-05;
      3. A fictitious name registered in the manner provided in chapter 45-11;
      4. A trade name registered in the manner provided in chapter 47-25; or
      5. A trademark or service mark registered in the manner provided in chapter 47-22.
    6. Need not be filed as provided in chapter 45-11 except if transacting business under a name other than the name as registered under this chapter.
  2. The secretary of state shall determine whether a name is distinguishable in the secretary of state’s records from another name for purposes of this chapter and may adopt rules reasonable or necessary for making these determinations.
  3. If the secretary of state determines a limited liability partnership name is indistinguishable in the secretary of state’s records from another name for purposes of this chapter, the limited liability partnership name may not be used unless there is filed with the registration:
    1. The written consent of the holder of the rights to the name to which the proposed name has been determined to be indistinguishable; or
    2. A certified copy of a judgment of a court in this state establishing the earlier right of the applicant to the use of the name in this state.
  4. This section and section 45-22-05 do not:
    1. Abrogate or limit:
      1. The law of unfair competition or unfair practices;
      2. Chapter 47-25;
      3. The laws of the United States with respect to the right to acquire and protect copyrights, trade names, trademarks, service names, and service marks; or
      4. Any other rights to the exclusive use of names or symbols.
    2. Derogate the common law or principles of equity.
  5. A limited liability partnership that is the surviving organization in a merger with one or more organizations, or that acquires by sale, lease, or other disposition to or exchange with a domestic organization all or substantially all of the assets of another organization including its name, may have the same name, subject to the requirements of subsection 1, as that used in this state by any of the other organizations, if the other organization whose name is sought:
    1. Is incorporated, organized, formed, or registered under the laws of this state;
    2. Is authorized to transact business or conduct activities in this state;
    3. Holds a reserved name in the manner provided in section 10-19.1-14, 10-32.1-12, 10-33-11, 45-10.2-11, 45-13-04.2, or 45-22-05;
    4. Holds a fictitious name registered in the manner provided in chapter 45-11;
    5. Holds a trade name registered in the manner provided in chapter 47-25; or
    6. Holds a trademark or service mark registered in the manner provided in chapter 47-22.
  6. The use of a name by a limited liability partnership in violation of this section does not affect or vitiate the limited liability partnership’s status as a limited liability partnership. However, a court of this state may, upon application of the state or of an interested or affected person, enjoin the limited liability partnership from doing business under a name assumed in violation of this section, even though the limited liability partnership’s registration may have been filed with the secretary of state.
  7. A limited liability partnership whose registration has expired or whose registration has been forfeited as provided in section 45-22-21.1 may reacquire the right to use that name by refiling a registration as provided in section 45-22-03 unless the name has been adopted for use or reserved by another person, in which case the filing will be rejected unless the filing is accompanied by a written consent or judgment pursuant to subsection 3. A limited liability partnership that cannot reacquire the use of its limited liability partnership name shall adopt a new limited liability partnership name that complies with this section:
    1. By refiling a registration as provided in section 45-22-03;
    2. By amending its registration as provided in section 45-22-03; or
    3. By reinstating the limited liability partnership pursuant to section 45-22-21.1, unless the name has been adopted for use or reserved by another person, in which case the filing will be rejected unless the filing is accompanied by a written consent or judgment as provided in subsection 3.
  8. With respect to foreign limited liability partnerships:
    1. A foreign limited liability partnership may register under any name that would be available to a domestic limited liability partnership, regardless of whether the name is the same under which the foreign limited liability partnership is authorized in the jurisdiction of original registration.
    2. A fictitious name certificate must be filed as provided in chapter 45-11 only if registering under a name other than the name as authorized in the jurisdiction of original registration.
  9. A limited liability partnership that files its registration with an effective date later than the date of filing as provided in subsection 9 of section 45-22-03 shall maintain the right to the name until the effective date.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 225; 1999, ch. 95, § 179; 2003, ch. 85, § 157; 2005, ch. 100, § 139; 2005, ch. 384, § 11; 2011, ch. 87, § 70; contingently amended by 2015, ch. 87, §§ 34, 35, effective July 1, 2015; contingently amended by 2019, ch. 93, § 13.

Note.

This section is effective upon receipt by the legislative council of the certification by the secretary of state attesting that all necessary administrative rules and information technology components and systems are ready for implementation of this Act.

45-22-05. Reserved name.

  1. The exclusive right to the use of a limited liability partnership name otherwise permitted by section 45-22-04 may be reserved by any person.
  2. The reservation is made by filing with the secretary of state a request that the name be reserved:
    1. If the name is available for use by the applicant, the secretary of state shall reserve the name for the exclusive use of the applicant for a period of twelve months.
    2. The reservation may be renewed for successive twelve-month periods.
  3. The right to the exclusive use of a limited liability partnership name reserved pursuant to this section may be transferred to another person by or on behalf of the applicant for whom the name was reserved by filing with the secretary of state a notice of the transfer and specifying the name and address of the transferee.
  4. The right to the exclusive use of a limited liability partnership name reserved pursuant to this section may be canceled by or on behalf of the applicant for whom the name was reserved by filing with the secretary of state a notice of cancellation.
  5. The secretary of state may destroy all reserved name requests and the index thereof one year after expiration.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 226; 1999, ch. 95, § 180; 2003, ch. 85, § 158; 2005, ch. 100, § 140.

45-22-06. Failure to use required name.

If a person purports to enter into a contract or other undertaking on behalf of a limited liability partnership and with intent to defraud does not disclose to the other party that part of the limited liability partnership’s name that complies with subsection 1 of section 45-22-04, that person is personally liable on the contract or undertaking unless that person can show in making the contract or accepting the undertaking that the other party had knowledge or notice that the partnership was a limited liability partnership, or did not rely on the partnership being an ordinary partnership. Any partner of a limited liability partnership who with intent to defraud consents to a person not making the disclosure described in this section is also personally liable on the contract or undertaking, unless that partner can make the showing described in this section.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 227; 1999, ch. 95, § 181.

45-22-07. Unauthorized assumption of limited liability partnership powers — Liability.

A person who assumes to act as a limited liability partnership knowing that a registration is not in effect is jointly and severally liable for all debts and liabilities incurred or arising as a result.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 228; 1999, ch. 95, § 182.

45-22-08. Limited liability partnership shield. [Repealed]

Repealed by S.L. 1999, ch. 95, § 207.

45-22-08.1. Partner liability.

  1. An obligation of a partnership incurred while the partnership is a domestic limited liability partnership, whether arising in contract, tort, or otherwise, is solely the obligation of the domestic limited liability partnership.
  2. A partner is not personally liable, directly or indirectly, including by way of indemnification, contribution, or otherwise under section 45-19-03, 45-20-06, 45-20-07, 45-21-03, or 45-21-06 or any other basis of law, for an obligation under this section solely by reason of being a partner or acting as a partner.
  3. This section applies notwithstanding any inconsistent provision in the partnership agreement.
  4. This section does not limit or impair the right of a domestic limited liability partnership or the domestic limited liability partnership’s partners to make claims against any particular partner on the grounds that the particular partner has, in the partner’s capacity as a partner, breached a duty to a domestic limited liability partnership.

Source:

S.L. 1999, ch. 95, § 183.

Law Reviews.

Registration and Operation of North Dakota and Minnesota Limited Liability Partnerships, 72 N.D. L. Rev. 555 (1996).

45-22-09. Piercing the limited liability shield.

With respect to piercing the limited liability partnership shield:

  1. Except as provided in subsection 2, the case law that states the conditions and circumstances under which the corporate veil or limited liability shield of a corporation may be pierced under North Dakota law also applies to limited liability partnerships, taking into account the differences between corporations and partnerships.
  2. The use of informal procedures or arrangements for the management and for the conduct of business is not a ground for piercing the limited liability shield of the limited liability partnership.

Source:

S.L. 1995, ch. 55, § 27.

Law Reviews.

Registration and Operation of North Dakota and Minnesota Limited Liability Partnerships, 72 N.D. L. Rev. 555 (1996).

45-22-10. Liability of partners for illegal distributions.

With respect to the liability of partners for illegal distributions:

  1. Except as provided in subsection 3, a partner who receives a distribution from a domestic limited liability partnership which would have been in violation of section 10-19.1-92 had the limited liability partnership been a corporation with a board of directors is liable to the domestic limited liability partnership, the domestic limited liability partnership’s receiver, or other person winding up the domestic limited liability partnership’s affairs, but only to the extent that the distribution received by the partner exceeded the amount that properly could have been paid under section 10-19.1-92.
  2. An action may not be commenced under this section more than two years from the date of the distribution.
  3. A partner actively engaged in the partnership business is not liable to the domestic limited liability partnership for any distribution that is or was regularly paid to the partner on account of engagement in the partnership business to the extent the distribution is reasonable compensation for the partner’s services to or on behalf of the partnership.

Source:

S.L. 1995, ch. 55, § 27; 1999, ch. 95, § 184.

45-22-11. Registered office and agent.

A limited liability partnership shall continuously maintain a registered agent as provided by chapter 10-01.1 and, if a noncommercial registered agent, the address of that noncommercial registered agent in this state.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 230; 1999, ch. 95, § 185; 2007, ch. 99, § 75.

45-22-12. Change of registered office or agent.

  1. A limited liability partnership may change the limited liability partnership’s registered office, change the limited liability partnership’s registered agent, or state a change in the name of the limited liability partnership’s registered agent as provided in chapter 10-01.1.
  2. A registered agent of a limited liability partnership may resign as provided in chapter 10-01.1.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 231; 1999, ch. 95, § 186; 2007, ch. 99, § 76.

45-22-13. Voluntary withdrawal of status.

  1. A partnership may end the partnership’s status as a limited liability partnership at any time by filing a withdrawal statement with the secretary of state.
  2. The withdrawal statement must contain:
    1. With respect to a domestic limited liability partnership:
      1. The name of the domestic limited liability partnership.
      2. A statement that the domestic limited liability partnership is withdrawing the current registration.
      3. An acknowledgment by the domestic limited liability partnership that the withdrawal ends the domestic limited liability partnership’s status as a limited liability partnership with respect to periods after the effective date of the withdrawal.
    2. With respect to a foreign limited liability partnership:
      1. The name of the foreign limited liability partnership.
      2. The jurisdiction of origin.
      3. A statement that the foreign limited liability partnership is not transacting business in this state as a foreign limited liability partnership.
      4. A statement that the foreign limited liability partnership surrenders authority to transact business in this state as a foreign limited liability partnership and is withdrawing the foreign limited liability partnership’s current registration.
      5. An acknowledgment by the foreign limited liability partnership that the withdrawal ends the foreign limited liability partnership’s authorization to transact business in this state as a foreign limited liability partnership with respect to periods after the effective date of the withdrawal.
      6. A statement that the foreign limited liability partnership consents to service of process based upon any cause of action arising in this state during the time the foreign limited liability partnership was authorized to transact business in this state and that service may be made on the foreign limited liability partnership as provided in section 10-01.1-13.
      7. A post-office address to which a person may mail a copy of any process against the foreign limited liability partnership.
  3. The withdrawal statement may state a delayed withdrawal date. If the withdrawal statement does not state an effective date, the statement is effective when filed.
  4. If the foreign limited liability partnership is not the surviving organization in a merger or termination, the filing with the secretary of state of a certificate to that effect authenticated by the proper officer of the state or country under the laws of which the foreign limited liability partnership is originally registered constitutes a valid withdrawal statement.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 232; 1999, ch. 95, § 187; 2007, ch. 99, § 77.

45-22-14. Filing after dissolution.

  1. A dissolved limited liability partnership that is winding up affairs may continue the limited liability partnership’s status as a limited liability partnership through termination by continuing to file an annual report until termination.
  2. When the dissolved limited liability partnership winds up affairs, the limited liability partnership shall file with the secretary of state a termination notice, together with the fees provided in section 45-22-22. The termination notice must:
    1. Contain:
      1. The name of the limited liability partnership.
      2. A statement the limited liability partnership dissolved and wound up affairs.
      3. A statement the limited liability partnership is terminated.
    2. Be signed by one former managing partner who did not wrongfully dissolve the partnership or, in the case of a foreign limited liability partnership, by an authorized partner.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 233; 1999, ch. 95, § 188.

45-22-15. Limited liability after dissolution.

With respect to limited liability after dissolution:

  1. Subject to section 45-22-14, the limited liability shield described in sections 45-22-08.1 and 45-22-09 continues in full force for the dissolved domestic limited liability partnership regardless of any dissolution, winding up, and termination.
  2. If a domestic limited liability partnership dissolves and the domestic limited liability partnership’s business is continued by a successor partnership under section 45-20-02, the limited liability described in section 45-22-08.1 also applies to that successor domestic limited liability partnership until the withdrawal of the registration that the dissolved domestic limited liability partnership had in effect under section 45-22-03 at the moment of dissolution. The successor partnership may at any time file the partnership’s own registration under section 45-22-03.

Source:

S.L. 1995, ch. 55, § 27; 1999, ch. 95, § 189; 2001, ch. 55, § 17.

Notes to Decisions

Standing to Sue.

Limited liability partnership had standing to sue in an option contract case because, as of a September 19, 2012, order, the partnership’s registration had not been forfeited, nor had the North Dakota Secretary of State revoked its registration; moreover, a website status that listed it as “not good standing” was from significantly before the registration would have been forfeited. Even if the registration had been revoked, the partnership would have continued as a legal entity with the ability to sue and be sued. Guthmiller Farms, LLP v. Guthmiller, 2013 ND 248, 840 N.W.2d 636, 2013 N.D. LEXIS 255 (N.D. 2013).

45-22-16. Secretary of state — Revocation of registration.

  1. The registration of a limited liability partnership or foreign limited liability partnership may be revoked by the secretary of state if:
    1. The limited liability partnership or foreign limited liability partnership fails:
      1. To appoint and maintain a registered agent and registered office as provided in chapter 10-01.1;
      2. To file any amendment to the registration of the limited liability partnership or foreign limited liability partnership as required to be filed pursuant to subdivision b or c of subsection 4 of section 45-22-03;
      3. Fails to file a merger as required to be filed pursuant to subdivision d of subsection 4 of section 45-22-03; or
      4. Fails to file a withdrawal statement or cancellation of its registration if the foreign limited liability partnership’s existence expires, it is dissolved, or it ceases to exist in the jurisdiction of origin.
    2. An intentional misrepresentation is made in any material matter in any registration, report, affidavit, or other document submitted by the limited liability partnership or foreign limited liability partnership pursuant to this chapter.
  2. Except for revocation of the registration for failure to file the annual report as provided in section 45-22-21.1, the secretary of state may not revoke the registration of a limited liability partnership or foreign limited liability partnership unless:
    1. The secretary of state gave the limited liability partnership or foreign limited liability partnership at least sixty days’ notice of the reason for the pending revocation by mail addressed to the registered agent of the limited liability partnership or foreign limited liability partnership at the registered office or, if the limited liability partnership or foreign limited liability partnership fails to appoint and maintain a registered agent in this state, by mail addressed to its principal executive office; and
    2. During the sixty-day period, the limited liability partnership or foreign limited liability partnership fails:
      1. To appoint and maintain a registered agent as provided in chapter 10-01.1;
      2. To file the report of change regarding the name or business address of the registered agent;
      3. To file any amendment to the registration of the limited liability partnership or foreign limited liability partnership required to be filed pursuant to subdivision b or c of subsection 4 of section 45-22-03; or
      4. To correct the misrepresentation.
  3. Upon the expiration of the sixty-day period without the limited liability partnership or foreign limited liability partnership curing the reason for the pending revocation set forth in the notice, the registration is revoked. The secretary of state shall note the revocation in the records of the secretary of state and shall give notice of the revocation to the limited liability partnership or foreign limited liability partnership. Notice by the secretary of state must be mailed to the last registered agent at the last registered office. If the limited liability partnership or foreign limited liability partnership failed to appoint and maintain a registered office in this state, the notice must be mailed to its principal executive office.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 234; 1999, ch. 95, § 190; 2007, ch. 99, § 78; 2011, ch. 87, § 71; 2015, ch. 86, § 22, effective July 1, 2015.

45-22-17. Service of process on a limited liability partnership or a foreign limited liability partnership and on a nonresident partner.

Any process, notice, or demand required or permitted by law to be served on the limited liability partnership, the foreign limited liability partnership, or a partner may be served as provided in section 10-01.1-13.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 235; 1999, ch. 95, § 191; 2003, ch. 85, § 159; 2005, ch. 100, § 141; 2007, ch. 99, § 79.

45-22-18. Foreign limited liability partnership — Governing law.

  1. The laws of the foreign limited liability partnership’s jurisdiction of origin govern:
    1. The relations among the partners of a foreign limited liability partnership, or the relations between any partner or partners of a foreign limited liability partnership and the foreign limited liability partnership; and
    2. The liability of partners for obligations of a foreign limited liability partnership.
  2. A foreign limited liability partnership may not be denied registration to transact business in this state by reason of any difference between the laws of the foreign limited liability partnership’s jurisdiction of origin and the laws of this state.
  3. A foreign limited liability partnership holding a valid registration in this state has the same, but no greater, rights and privileges as a domestic limited liability partnership. The registration does not authorize the foreign limited liability partnership to engage in any business or exercise any power that a domestic limited liability partnership may not engage in or exercise as a limited liability partnership.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 236; 1999, ch. 95, § 192.

45-22-19. Foreign limited liability partnership — Transacting business and obtaining licenses and permits by a foreign limited liability partnership.

No foreign limited liability partnership may transact business in this state or obtain any license or permit required by this state until the partnership has registered with the secretary of state.

Source:

S.L. 1995, ch. 55, § 27.

Law Reviews.

Registration and Operation of North Dakota and Minnesota Limited Liability Partnerships, 72 N.D. L. Rev. 555 (1996).

45-22-20. Transaction of business by a foreign limited liability partnership without registration.

  1. A foreign limited liability partnership transacting business in this state may not maintain any cause of action in any court of this state until the partnership registers with the secretary of state.
  2. The failure of a foreign limited liability partnership to register with the secretary of state does not impair the validity of any contract or act of the foreign limited liability partnership or prevent the foreign limited liability partnership from defending any claim for relief in any court of this state.
  3. A limitation on the personal liability of a partner is not waived solely by the foreign limited liability partnership transacting business in this state without having filed a registration with the secretary of state.
  4. A foreign limited liability partnership, by transacting business in this state without registering with the secretary of state, appoints the secretary of state as the agent upon whom any notice, process, or demand may be served.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 237; 1999, ch. 95, § 193.

Law Reviews.

Registration and Operation of North Dakota and Minnesota Limited Liability Partnerships, 72 N.D. L. Rev. 555 (1996).

45-22-20.1. Foreign limited liability partnership — Transactions by a foreign limited liability partnership not constituting the transactions of business.

  1. A foreign limited liability partnership transacting business in this state may not maintain any claim, action, suit, or proceeding in any court of this state until the foreign limited liability partnership registers with the secretary of state.
  2. The failure of a foreign limited liability partnership to register does not impair the validity of any contract or act of the foreign limited liability partnership or prevent the foreign limited liability partnership from defending any claim, action, suit, or proceeding in any court in this state.
  3. A foreign limited liability partnership, by transacting business in this state without registering, appoints the secretary of state as the foreign limited liability partnership’s agent upon whom any notice, process, or demand may be served.
  4. A foreign limited liability partnership that transacts business in this state without registering is liable to the state for the years or parts of years during which the foreign limited liability partnership transacted business in this state without registering in an amount equal to all fees that would have been imposed by this chapter upon that foreign limited liability partnership had the foreign limited liability partnership duly registered, filed all reports required by this chapter, and paid all penalties imposed by this chapter. The attorney general shall bring proceedings to recover all amounts due this state under this section.
  5. A foreign limited liability partnership that transacts business in this state without registering is subject to a civil penalty, payable to the state, not to exceed five thousand dollars. Each managing partner or agent who authorizes, directs, or participates in the transaction of business in this state on behalf of a foreign limited liability partnership that has not registered is subject to a civil penalty, payable to the state, not to exceed one thousand dollars.
  6. The civil penalties set forth in subsection 5 may be recovered in an action brought within the district court of Burleigh County by the attorney general. Upon a finding by the court that a foreign limited liability partnership or any of the foreign limited liability partnership’s managing partners or agents have transacted business in this state in violation of this chapter, the court shall issue, in addition to the imposition of a civil penalty, an injunction restraining the further transaction of the business of the foreign limited liability partnership and further exercise of any rights and privileges by the foreign limited liability partnership in this state. The foreign limited liability partnership must be enjoined from transacting business in this state until all civil penalties plus any interest and court costs that the court may assess have been paid and until the foreign limited liability partnership has otherwise complied with the provisions of this chapter.

Source:

S.L. 1999, ch. 95, § 194.

45-22-21. Foreign limited liability partnership — Transactions by a foreign limited liability partnership not constituting the transaction of business.

  1. The following activities of a foreign limited liability partnership, among others, do not constitute transacting business within the meaning of this chapter:
    1. Maintaining, defending, or settling any proceeding.
    2. Holding meetings of partners or carrying on any other activities concerning internal affairs.
    3. Maintaining bank accounts.
    4. Maintaining offices or agencies for the transfer, exchange, and registration of the foreign limited liability partnership’s own partnership interests or maintaining trustees or depositories with respect to those partnership interests.
    5. Selling through independent contractors.
    6. Soliciting or obtaining orders, whether by mail or through employees or agents or otherwise, if the orders require acceptance outside this state before the orders become contracts.
    7. Creating or acquiring indebtedness, with or without a mortgage, or other security interests in real or personal property.
    8. Collecting debts, including foreclosing mortgages and canceling contracts for deed; enforcing other security interests on property; securing debts; accepting deeds or other instruments of title from debtors in lieu of foreclosure; canceling or other enforcement; and holding, protecting, and maintaining property acquired under this subdivision.
    9. Selling or transferring title to property in this state to any person.
    10. Conducting an isolated transaction that is completed within thirty days and that is not one in the course of repeated transactions of a like manner.
    11. Transacting business in interstate commerce.
  2. As used in this section, the term “transacting business” has no effect on personal jurisdiction under the North Dakota Rules of Civil Procedure.
  3. For purposes of this section, any foreign limited liability partnership that owns income-producing real or tangible personal property in this state, other than property exempted under subsection 1, is considered transacting business in this state.
  4. This section does not apply in determining the contracts or activities that may subject a foreign limited liability partnership to service of process or taxation in this state or to regulation under any other law of this state.

Source:

S.L. 1995, ch. 55, § 27; 1999, ch. 95, § 195.

45-22-21.1. Secretary of state — Annual report of domestic limited liability partnership and foreign limited liability partnership.

  1. Each domestic limited liability partnership and each foreign limited liability partnership authorized to transact business in this state shall file, within the time provided by subsection 3, an annual report setting forth:
    1. The name of the limited liability partnership and its jurisdiction of origin.
    2. The address of the registered office of the limited liability partnership in this state, and the name of the limited liability partnership’s registered agent in this state at that address.
    3. The address of the limited liability partnership’s chief executive office.
    4. A brief statement of the character of the business in which the limited liability partnership is actually engaged in this state.
    5. The name and respective address of each managing partner of the domestic limited liability partnership or foreign limited liability partnership.
    6. If the limited liability partnership or foreign limited liability partnership owns or leases land that is used for farming or ranching in this state, a statement listing:
      1. The names and addresses of all partners; and
      2. The acreage [hectarage] and location listed by section, township, range, and county of all land in this state owned or leased by the limited liability partnership or foreign limited liability partnership.
  2. The annual report must be submitted on forms prescribed by the secretary of state. The information provided must be given as of the date of the execution of the report. The annual report must be signed as provided in subsection 24 of section 45-22-01, the partnership agreement, or in a resolution approved by the affirmative vote of the required proportion or number of partners. If the limited liability partnership is in the hands of a receiver or trustee, the annual report must be signed on behalf of the limited liability partnership by the receiver or trustee. The secretary of state may destroy any annual report provided for in this section after the annual report is on file for six years.
  3. Except for the first annual report, the annual report of a limited liability partnership or foreign limited liability partnership must be delivered to the secretary of state before April first of each year. The first annual report of a limited liability partnership must be delivered before April first of the year following the calendar year of the effective date stated in the registration and the first annual report of a foreign limited liability partnership must be delivered before April first of the year following the calendar year in which the registration is filed by the secretary of state. A limited liability partnership in existence on July 1, 1999, shall file the first annual report before April first in the year of the expiration of the registration in effect on July 1, 1999. The secretary of state must file the annual report if the annual report conforms to the requirements of subsection 2.
    1. If the annual report does not conform, the annual report must be returned to the limited liability partnership for any necessary corrections.
    2. If the annual report is filed before the deadlines provided in this subsection, penalties for the failure to file a report within the time provided do not apply if the annual report is corrected to conform to the requirements of subsection 2 and returned to the secretary of state within thirty days after the annual report was returned by the secretary of state for correction.
  4. After the date established under subsection 3, the secretary of state shall notify any limited liability partnership failing to file an annual report that the limited liability partnership’s registration is not in good standing and that the registration of the limited liability partnership may be revoked pursuant to subsection 5.
    1. The secretary of state shall mail notice of revocation to the last registered agent at the last registered office.
    2. If the limited liability partnership files an annual report after the notice is mailed, together with the annual report filing fee and late filing penalty fee as provided by section 45-22-22, the secretary of state shall restore the limited liability partnership’s registration to good standing.
  5. A domestic limited liability partnership that does not file an annual report, along with the statutory filing and penalty fees, within six months after the date established in subsection 3, forfeits the limited liability partnership’s registration.
    1. The secretary of state shall note the revocation of the domestic limited liability partnership’s registration on the records of the secretary of state and shall give notice of the action to the revoked domestic limited liability partnership.
    2. Notice by the secretary of state must be mailed to the domestic limited liability partnership’s last registered agent at the last registered office.
  6. A foreign limited liability partnership that does not file an annual report, along with the statutory filing and penalty fees, within six months after the date established by subsection 3, forfeits the foreign limited liability partnership’s registration and authority to transact business in this state.
    1. The secretary of state shall note the revocation of the foreign limited liability partnership’s registration and authority on the records of the secretary of state and shall give notice of the action to the foreign limited liability partnership.
    2. Notice by the secretary of state must be mailed to the foreign limited liability partnership’s last registered agent at the last registered office.
    3. The secretary of state’s decision that a registration must be revoked under this subsection is final.
  7. A domestic limited liability partnership with a registration that is revoked for failure to file an annual report or a foreign limited liability partnership with registration and authority that are forfeited by failure to file an annual report may be reinstated by filing a past-due report, together with the statutory filing and penalty fees for an annual report and a reinstatement fee as provided in section 45-22-22. The fees must be paid and the report filed within one year following the revocation. Reinstatement under this subsection does not affect any right or liability of a domestic limited liability partnership or a foreign limited liability partnership for the time from the revocation to the reinstatement.

Source:

S.L. 1999, ch. 95, § 196; 2003, ch. 85, § 160; 2005, ch. 100, § 142; 2005, ch. 385, § 2; 2007, ch. 99, § 80; 2019, ch. 92, § 18, effective August 1, 2019; 2021, ch. 85, § 22, effective August 1, 2021.

Notes to Decisions

Standing to Sue.

Limited liability partnership had standing to sue in an option contract case because, as of a September 19, 2012, order, the partnership’s registration had not been forfeited, nor had the North Dakota Secretary of State revoked its registration; moreover, a website status that listed it as “not good standing” was from significantly before the registration would have been forfeited. Even if the registration had been revoked, the partnership would have continued as a legal entity with the ability to sue and be sued. Guthmiller Farms, LLP v. Guthmiller, 2013 ND 248, 840 N.W.2d 636, 2013 N.D. LEXIS 255 (N.D. 2013).

45-22-22. Secretary of state — Fees and charges.

  1. The secretary of state shall charge and collect for:
    1. Filing a registration as a domestic limited liability partnership, thirty-five dollars. If there are more than two managing partners, an additional three dollars must be paid for each additional managing partner not to exceed two hundred fifty dollars.
    2. Filing a registration as a foreign limited liability partnership, sixty dollars.
    3. Filing an annual report of a domestic limited liability partnership or foreign limited liability partnership, twenty-five dollars.
      1. The secretary of state shall charge and collect additional fees for late filing of an annual report as follows:
        1. After the date provided in subsection 3 of section 45-22-21.1, twenty dollars; and
        2. After the revocation of the domestic limited liability partnership registration or the foreign limited liability partnership registration, the reinstatement fee of fifty dollars.
      2. Fees paid to the secretary of state according to this subdivision are not refundable if an annual report submitted to the secretary of state cannot be filed because it lacks information required by section 45-22-21.1 or the annual report lacks sufficient payment as required by this subdivision.
    4. Filing a statement of correction or amended registration, twenty-five dollars.
    5. Filing an application to reserve a name, ten dollars.
    6. Filing a notice of transfer of a reserved name, ten dollars.
    7. Filing a cancellation of a reserved name, ten dollars.
    8. Filing a consent to use of name, ten dollars.
    9. Filing a statement of change of address of registered office or change of registered agent or both, or change of address of registered office by registered agent, the fee provided in section 10-01.1-03.
    10. Filing a notice of withdrawal, ten dollars.
    11. Filing a certificate of fact stating a merger of a foreign limited liability partnership registered with the secretary of state, fifty dollars.
    12. Filing any other statement of a domestic limited liability partnership, ten dollars.
    13. Filing any process, notice, or demand for service, the fee provided in section 10-01.1-03.
    14. Any record submitted for approval before the actual time of submission for filing, one-half of the fee provided in this section for filing the record.
  2. The secretary of state shall charge and collect for:
    1. Furnishing a copy of any record or paper relating to a domestic limited liability partnership or foreign limited liability partnership, the fee provided in section 54-09-04 for copying a record.
    2. A certificate certifying a copy or reciting facts related to a domestic limited liability partnership or foreign limited liability partnership, fifteen dollars.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 238; 1999, ch. 95, § 197; 2005, ch. 100, § 143; 2007, ch. 101, § 76; 2007, ch. 99, § 81; 2009, ch. 106, § 73.

45-22-23. Secretary of state — Powers — Enforcement — Penalty — Appeal.

  1. The secretary of state shall administer this chapter.
  2. The secretary of state may propound to any limited liability partnership subject to this chapter and to any partner any interrogatory reasonably necessary and proper to ascertain whether the partnership has complied with this chapter.
    1. Any interrogatory must be answered within thirty days after mailing or within any additional time fixed by the secretary of state. Every answer to the interrogatory must be full and complete and be made in writing and under oath.
    2. If an interrogatory is directed:
      1. To an individual, the interrogatory must be answered by that individual;
      2. To a domestic limited liability partnership, the interrogatory must be answered by a managing partner; or
      3. To a foreign limited liability partnership, the interrogatory must be answered by a resident partner or, if no partner is a resident partner, a partner designated by the foreign limited liability partnership.
    3. The secretary of state need not file any record to which an interrogatory relates until the interrogatory is answered, except if the answers disclose the record is not in conformity with this chapter.
    4. The secretary of state shall certify to the attorney general, for any action the attorney general determines appropriate, any interrogatory and answers that disclose a violation of this chapter.
    5. Each managing partner of a domestic limited liability partnership or a resident partner or designated partner of a foreign limited liability partnership who fails or refuses within the time provided by this section to answer truthfully and fully every interrogatory propounded to that person by the secretary of state is guilty of an infraction.
    6. Any interrogatory propounded by the secretary of state and the answers are not open to public inspection under section 44-04-18. The secretary of state may not disclose any fact or information obtained from an interrogatory except to the extent permitted by law or required for evidence in any criminal proceeding or other action by this state.
  3. If the secretary of state rejects any record required by this chapter to be approved by the secretary of state before the record may be filed, the secretary of state shall give written notice of the rejection to the person that delivered the record, specifying the reasons for rejection.
    1. Within thirty days after the service of the notice of denial, the limited liability partnership may appeal to the district court in the judicial district serving Burleigh County by filing with the clerk of that court a petition setting forth a copy of the record sought to be filed and a copy of the written rejection of the record by the secretary of state. The court shall try the matter de novo.
    2. The court shall sustain the action of the secretary of state or direct the secretary of state to take any action the court determines proper.
  4. If the secretary of state revokes the registration of any foreign limited liability partnership pursuant to section 45-22-16, then the foreign limited liability partnership may appeal to district court in the judicial district serving Burleigh County by filing with the clerk of that court a petition, including:
    1. A copy of the foreign limited liability partnership’s registration; and
    2. A copy of the notice of revocation given by the secretary of state. The court shall try the matter de novo. The court shall sustain the action of the secretary of state or direct the secretary of state to take any action the court determines proper.
  5. If the court order sought is one for reinstatement of a domestic limited liability partnership registration that has been revoked as provided in subsection 5 of section 45-22-22.1, or for reinstatement of the registration of a foreign limited liability partnership that has been revoked as provided in subsection 6 of section 45-22-21.1, then, together with any other action the court deems proper, any such order which orders the reinstatement of the registration of a domestic or foreign limited liability partnership registration shall require the domestic or foreign limited liability partnership to:
    1. File the most recent past-due annual report;
    2. Pay the fees to the secretary of state for all past-due annual reports as provided in subsection 1 of section 45-22-22; and
    3. Pay the reinstatement fee to the secretary of state as provided in subsection 1 of section 45-22-22.
  6. The attorney general may maintain an action to restrain a foreign limited liability partnership from transacting business in this state in violation of this chapter.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 239; 1999, ch. 95, § 198; 2005, ch. 100, § 144; 2009, ch. 106, § 74.

45-22-23.1. Delivery to and filing of records by secretary of state and effective date.

  1. A record authorized or required to be delivered to the secretary of state for filing under this chapter must be captioned to describe the purpose of the record, be in a medium permitted by the secretary of state, and be delivered to the secretary of state. If the secretary of state determines that a record complies with the filing requirements of this chapter, then the secretary of state shall file the record and return a copy of the filed record to the person that delivered it to the secretary of state for filing. That person shall then:
    1. For a statement of dissociation, send a copy of the filed statement:
      1. To the person which the statement indicates has dissociated as a partner; and
      2. To the limited liability partnership; and
    2. For all other records, send a copy of the filed record to the person on whose behalf the record was filed.
  2. Upon request and payment of a fee provided in section 45-22-22, the secretary of state shall send to the requester a certified copy of the requested record.
  3. Except as otherwise specifically provided in this chapter, a record delivered to the secretary of state for filing under this chapter may specify a delayed effective date within ninety days. Except as otherwise provided in this chapter, a record filed by the secretary of state is effective:
    1. If the record does not specify a delayed effective date within ninety days, then on the date the record is filed as evidenced by the endorsement of the secretary of state of the date on the record.
    2. If the record specifies a delayed effective date within ninety days, then on the specified date.

Source:

S.L. 2005, ch. 100, § 145.

45-22-23.2. Correcting a filed record.

With respect to correction of a filed record:

  1. Whenever a record authorized by this chapter to be filed with the secretary of state has been filed and inaccurately records the action referred to in the record, contains an inaccurate or erroneous statement, or was defectively or erroneously signed, sealed, acknowledged, or verified, the record may be corrected by filing a statement of correction.
  2. A statement of correction:
    1. Must:
      1. Be signed by:
        1. The person that signed the original record; or
        2. By a person authorized to sign on behalf of that person;
      2. Set forth the name of the limited liability partnership that filed the record;
      3. Identify the record to be corrected by description and by the date of its filing with the secretary of state;
      4. Identify the inaccuracy, error, or defect to be corrected; and
      5. Set forth a statement in corrected form of the portion of the record to be corrected.
    2. May not revoke or nullify the record.
  3. The statement of correction must be filed with the secretary of state.
  4. With respect to the effective date of correction:
    1. A certificate issued by the secretary of state before a record is corrected, with respect to the effect of filing the original record, is considered to be applicable to the record as corrected as of the date the record as corrected is considered to have been filed under this subsection.
    2. After a statement of correction has been filed with the secretary of state, the original record as corrected is considered to have been filed:
      1. On the date the statement of correction was filed:
        1. As to persons adversely affected by the correction; and
        2. For the purposes of subsections 3 and 4 of section 45-10.2-06; and
      2. On the date the original record was filed as to all other persons and for all other purposes.

Source:

S.L. 2005, ch. 100, § 145.

45-22-24. Certificates and certified copies to be received in evidence.

  1. All copies of documents filed in accordance with this chapter, when certified by the secretary of state, may be taken and received in all courts, public offices, and official bodies as evidence of the facts stated.
  2. A certificate by the secretary of state under the great seal of this state, as to the existence or nonexistence of the facts relating to domestic limited liability partnerships or foreign limited liability partnerships which would not appear from a certified copy of any of the foregoing documents or certificates, may be taken and received in all courts, public offices, and official bodies as evidence of the existence or nonexistence of the facts stated.
  3. Any certificate or certified copy issued by the secretary of state under this section may be created and disseminated as an electronic record with the same force and effect as if produced in a paper form.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 240; 1999, ch. 95, § 199; 2011, ch. 87, § 72.

45-22-25. Forms to be furnished by the secretary of state.

Every annual report must be made on forms prescribed by the secretary of state. Upon request, the secretary of state may furnish forms for all other documents to be filed in the office of the secretary of state. However, the use of these documents, unless otherwise specifically required by law, is not mandatory.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 241; 1999, ch. 95, § 200.

45-22-26. Audit reports and audit of limited liability partnerships receiving state subsidies for production of alcohol or methanol for combination with gasoline.

Any limited liability partnership that produces agricultural ethyl alcohol or methanol within this state and which receives a production subsidy from the state, whether in the form of reduced taxes or otherwise, shall submit an annual audit report, prepared by a certified public accountant based on an audit of all records and accounts of the limited liability partnership, to the legislative audit and fiscal review committee. The audit must be submitted within ninety days of the close of the taxable year of the limited liability partnership. Upon request of the legislative audit and fiscal review committee, the state auditor shall conduct an audit of the records and accounts of any limited liability partnership required to submit an annual report under this section.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 242; 1999, ch. 95, § 201.

45-22-27. Foreign trade zones.

  1. As used in this section, unless the context otherwise requires:
    1. “Act of Congress” means the Act of Congress approved June 18, 1934, entitled an act to provide for the establishment, operation, and maintenance of foreign trade zones and ports of entry of the United States, to expedite and encourage foreign commerce and for other purposes, as amended, and commonly known as the Foreign Trade Zone Act of 1934 [48 Stat. 998; 19 U.S.C. 81a et seq.], as amended.
    2. “Private limited liability partnership” means a domestic limited liability partnership or foreign limited liability partnership, one of the purposes of which is to establish, operate, and maintain a foreign trade zone by itself or in conjunction with a public corporation.
    3. “Public corporation” means this state, any political subdivision of this state, any public agency of this state or any political subdivision of this state, or any corporate instrumentality of this state.
  2. Any private limited liability partnership or public corporation may apply to the proper authorities of the United States for a grant of the privilege of establishing, operating, and maintaining foreign trade zones and foreign trade subzones and to do all things necessary and proper to carry into effect the establishment, operation, and maintenance of such zones, in accordance with the Act of Congress and other applicable laws and rules.

Source:

S.L. 1995, ch. 55, § 27; 1997, ch. 103, § 243; 1999, ch. 95, § 202.

CHAPTER 45-23 Limited Liability Limited Partnership

45-23-01. Definitions.

For the purposes of this chapter, unless the context otherwise requires:

  1. “Address” means:
    1. In case of a registered office or principal executive office, the mailing address of the actual office location which may not be only a post-office box; and
    2. In all other cases, the mailing address, including the zip code.
  2. “Authenticated electronic communication” means:
    1. That the electronic communication is delivered:
      1. To the principal place of business of the limited liability limited partnership; or
      2. To a partner or agent of the limited liability limited partnership authorized by the limited liability limited partnership to receive the electronic communication; and
    2. That the electronic communication sets forth information from which the limited liability limited partnership can reasonably conclude that the electronic communication was sent by the purported sender.
  3. “Domestic organization” means an organization created under the laws of this state.
  4. “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
  5. “Electronic communication” means any form of communication, not directly involving the physical transmission of paper:
    1. That creates a record that may be retained, retrieved, and reviewed by a recipient of the communication; and
    2. That may be directly reproduced in paper form by the recipient through an automated process.
  6. “Electronic record” means a record created, generated, sent, communicated, received, or stored by electronic means.
  7. “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record which is signed or adopted by a person with the intent to sign the record.
  8. “Filed with the secretary of state” means, except as otherwise permitted by law or rule:
    1. That a record meeting the applicable requirements of this chapter, together with the fees provided in section 45-23-08, was delivered or communicated to the secretary of state by a method or medium of communication acceptable by the secretary of state and was determined by the secretary of state to conform to law.
    2. That the secretary of state did then:
      1. Record the actual date on which the record was filed, and if different, the effective date of filing; and
      2. Record the record in the office of the secretary of state.
  9. “Foreign limited liability limited partnership” means a partnership that is formed by two or more persons under the laws of a jurisdiction other than this state, and:
    1. Which is required by those laws to have one or more general partners and one or more limited partners;
    2. Whose general partners and limited partners have limited liability for the obligations of the foreign limited liability limited partnership under provisions similar to this chapter;
    3. For a purpose or purposes for which a limited liability limited partnership may be formed under this chapter; and
    4. Is in good standing in the jurisdiction of origin.
  10. “Foreign limited partnership” means a partnership that is formed by two or more persons under laws other than the laws of this state:
    1. Which is required by those laws to have one or more general partners and one or more limited partners;
    2. Whose general partners have personal liability for the obligations of the foreign limited partnership under provisions similar to chapter 45-10.2;
    3. For a purpose for which a limited partnership may be organized under chapter 45-10.2; and
    4. Is in good standing in its jurisdiction of origin.
  11. “Foreign organization” means an organization created under laws other than the laws of this state for a purpose for which the organization may be created under the laws of this state.
  12. “General partner” means:
    1. With respect to a limited liability limited partnership, a person:
      1. That becomes a general partner under section 45-10.2-37 and has not become dissociated as a general partner under section 45-10.2-57; or
      2. That was a general partner in a limited partnership when the limited partnership became subject to chapter 45-10.2 under section 45-10.2-03 and has not become dissociated as a general partner under section 45-10.2-57; and
    2. With respect to a foreign limited liability limited partnership, a person that has rights, powers, and obligations similar to those of a general partner in a limited liability limited partnership.
  13. “Governing statute” means:
    1. With respect to a domestic organization, the following chapters of this code which govern the internal affairs of the organization:
      1. If a corporation, then chapter 10-19.1;
      2. If a limited liability company, then chapter 10-32.1;
      3. If a limited partnership, then chapter 45-10.2;
      4. If a general partnership, then chapters 45-13 through 45-21;
      5. If a limited liability partnership, then chapter 45-22; and
      6. If a limited liability limited partnership, then this chapter; and
    2. With respect to a foreign organization, the laws of the jurisdiction under which the organization is created and under which the internal affairs of the organization are governed.
  14. “Jurisdiction of origin” refers to the jurisdiction in which the limited liability limited partnership status of a foreign limited liability limited partnership was established.
  15. “Limited liability limited partnership”, except in the phrase “foreign limited liability limited partnership”, means a partnership formed by two or more persons having one or more general partners and one or more limited partners which is formed under or elects to become subject to this chapter.
  16. “Limited partner” means:
    1. With respect to a limited liability limited partnership, a person that:
      1. Becomes a limited partner under section 45-10.2-31 and has not become dissociated as a limited partner under section 45-10.2-55; or
      2. Was a limited partner in a limited partnership when the limited partnership became subject to chapter 45-10.2 under section 45-10.2-03 and has not become dissociated as a limited partner under section 45-10.2-55; and
    2. With respect to a foreign limited liability limited partnership, a person that has rights, powers, and obligations similar to those of a limited partner in a limited liability limited partnership.
  17. “Limited partnership”, except in the phrase “foreign limited partnership” and “foreign limited liability limited partnership”, means a partnership having one or more general partners and one or more limited partners which is formed under or elects to become subject to chapter 45-10.2.
  18. “Notice”:
    1. Is given to a limited liability limited partnership:
      1. When in writing and mailed or delivered to a general partner at the registered office or principal executive office of the limited liability limited partnership; or
      2. When given by a form of electronic communication consented to by a general partner of the limited liability limited partnership to which the notice is given if by:
        1. Facsimile communication, when directed to a telephone number at which a general partner of the limited liability limited partnership has consented to receive notice;
        2. Electronic mail, when directed to an electronic mail address at which a general partner of the limited liability limited partnership has consented to receive notice;
        3. Posting on an electronic network on which a general partner of the limited liability limited partnership has consented to receive notice, together with separate notice to the limited liability limited partnership of the specific posting, upon the later of:
          1. The posting; or
          2. The giving of the separate notice; or
        4. Any other form of electronic communication by which a general partner of the limited liability limited partnership has consented to receive notice, when directed to the limited liability limited partnership;
    2. Is given to a partner of the limited liability limited partnership:
      1. When in writing and mailed or delivered to the partner at the registered office or principal executive office of the limited liability limited partnership; or
      2. When given by a form of electronic communication consented to by the partner to which the notice is given if by:
        1. Facsimile communication, when directed to a telephone number at which the partner has consented to receive notice;
        2. Electronic mail, when directed to an electronic mail address at which the partner has consented to receive notice;
        3. Posting on an electronic network on which the partner has consented to receive notice, together with separate notice to the partner of the specific posting, upon the later of:
          1. The posting; or
          2. The giving of the separate notice; or
        4. Any other form of electronic communication by which the partner has consented to receive notice when directed to the partner;
    3. Is given in all other cases:
      1. When mailed to the person at an address designated by the person or at the last-known address of the person;
      2. When deposited with a nationally recognized overnight delivery service for overnight delivery or, if overnight delivery to the person is not available, for delivery as promptly as practicable, to the person at an address designated by the person or at the last-known address of the person;
      3. When handed to the person;
      4. When left at the office of the person with a clerk or other person in charge of the office or:
        1. If there is no one in charge, when left in a conspicuous place in the office; or
        2. If the office is closed or the person to be notified has no office, when left at the dwelling house or usual place of abode of the person with some person of suitable age and discretion residing there;
      5. When given by a form of electronic communication consented to by the person to whom the notice is given if by:
        1. Facsimile communication, when directed to a telephone number at which the person has consented to receive notice;
        2. Electronic mail, when directed to an electronic mail address at which the person has consented to receive notice;
        3. Posting on an electronic network on which the person has consented to receive notice, together with separate notice to the person of the specific posting, upon the later of:
          1. The posting; or
          2. The giving of the separate notice; or
        4. Any other form of electronic communication by which the person has consented to receive notice, when directed to the person; or
      6. When the method is fair and reasonable when all circumstances are considered;
    4. Is given when deposited in the United States mail with sufficient postage affixed;
    5. Is given by deposit for delivery when deposited for delivery as provided in paragraph 2 of subdivision c, after having made sufficient arrangements for payment by the sender; and
    6. Is deemed received when given.
  19. “Organization”:
    1. Means, whether domestic or foreign, a corporation, limited liability company, general partnership, limited partnership, limited liability partnership, limited liability limited partnership, or any other person subject to a governing statute; but
    2. Excludes:
      1. Any nonprofit corporation, whether a domestic nonprofit corporation which is incorporated under chapter 10-33 or a foreign nonprofit corporation which is incorporated in another jurisdiction; or
      2. Any nonprofit limited liability company, whether a domestic nonprofit limited liability company which is organized under chapter 10-36 or a foreign nonprofit limited liability company which is organized in another jurisdiction.
  20. “Principal executive office” means:
    1. An office from which the limited liability limited partnership conducts business; or
    2. If the limited liability limited partnership has no office from which the limited liability limited partnership conducts business, then the registered office of the limited liability limited partnership.
  21. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
  22. “Registered office” means the place in this state designated as the registered office of the limited liability limited partnership or foreign limited liability limited partnership.
  23. “Remote communication” means communication via electronic communication, conference telephone, videoconference, the internet, or such other means by which persons not physically present in the same location may communicate with each other on a substantially simultaneous basis.
  24. “Signed” means:
    1. That the signature of a person, which may be a facsimile affixed, engraved, printed, placed, stamped with indelible ink, transmitted by facsimile or electronically, or in any other manner reproduced on the record, is placed on a record with the present intention to authenticate that record; and
    2. With respect to a record required by this chapter to be filed with the secretary of state, that:
      1. The record is signed by a person authorized to sign by this chapter, or pursuant to an agreement among the partners, or by a resolution approved by the affirmative vote of the required proportion or number of partners; and
      2. The signature and the record are communicated by a method or medium acceptable by the secretary of state.

Source:

S.L. 1999, ch. 95, § 203; 2003, ch. 85, § 161; 2005, ch. 100, § 147; 2005, ch. 384, § 12; 2007, ch. 354, § 27; 2007, ch. 101, § 77; 2009, ch. 106, § 75; 2015, ch. 87, § 36, effective July 1, 2015.

45-23-01.1. Legal recognition of electronic records and electronic signatures.

For purposes of this chapter:

  1. A record or signature may not be denied legal effect or enforceability solely because it is in electronic form;
  2. A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation;
  3. If a provision requires a record to be in writing, an electronic record satisfies the requirement; and
  4. If a provision requires a signature, an electronic signature satisfies the requirement.

Source:

S.L. 2003, ch. 85, § 162.

45-23-02. Applicability of chapter 45-10.2.

  1. In any case not provided for in this chapter, chapter 45-10.2 governs.
  2. If applying chapter 45-10.2 to a limited liability limited partnership and unless the context otherwise requires:
    1. All references in chapter 45-10.2 to “limited partnership” refer to “limited liability limited partnership”; and
    2. All references in chapter 45-10.2 to “foreign limited partnership” refer to “foreign limited liability limited partnership”.
  3. If any provision of this chapter conflicts with chapter 45-10.2, that provision of this chapter takes precedence.

Source:

S.L. 1999, ch. 95, § 203; 2005, ch. 100, § 148; 2005, ch. 384, § 13.

Cross-References.

Uniform limited partnership act, see N.D.C.C. ch. 45-10.2.

45-23-03. Limited liability limited partnership name. [Contingent effective date – See note]

  1. The name of each limited liability limited partnership as set forth in the limited liability limited partnership’s certificate of limited liability limited partnership:
    1. Must be expressed in letters or characters used in the English language as those letters or characters appear in the American standard code for information interchange (ASCII) table.
    2. Must contain without abbreviation the words “limited liability limited partnership” or the abbreviation “L.L.L.P.” or “LLLP”, either of which abbreviation may be used interchangeably for any purpose authorized by this chapter including real estate matters, contracts, and filings with the secretary of state.
    3. May contain the name of a partner.
    4. May not contain the word “corporation”, “company”, “incorporated”, “limited liability company”, “limited liability partnership”, or an abbreviation of these words.
    5. May not contain a word or phrase indicating or implying the limited liability limited partnership:
      1. Is organized for a purpose other than:
        1. A lawful purpose for which a limited liability limited partnership may be organized under this chapter; or
        2. For a purpose stated in its certificate of limited liability limited partnership; or
      2. May not be organized under this chapter.
    6. Must be distinguishable in the records of the secretary of state from:
      1. The name, whether foreign and authorized to do business in this state or domestic, unless there is filed with the certificate a record in compliance with subsection 3, of:
        1. Another limited liability limited partnership;
        2. A limited partnership;
        3. A corporation;
        4. A limited liability company; or
        5. A limited liability partnership;
      2. A name the right to which is, at the time of organization, reserved in the manner provided in section 10-19.1-14, 10-32.1-12, 10-33-11, 45-10.2-11, 45-13-04.2, or 45-22-05;
      3. A fictitious name registered in the manner provided in chapter 45-11;
      4. A trade name registered in the manner provided in chapter 47-25; or
      5. A trademark or service mark registered in the manner provided in chapter 47-22.
  2. The secretary of state shall determine whether a limited liability limited partnership name is distinguishable in the secretary of state’s records from another name for purposes of this chapter and may adopt rules reasonable or necessary for making these determinations.
  3. If the secretary of state determines a limited liability limited partnership name is indistinguishable in the secretary of state’s records from another name for purposes of this chapter, the limited liability limited partnership name may not be used unless there is filed with the certificate:
    1. The written consent of the holder of the registered trade name or the holder of the rights to the name to which the proposed name has been determined to be indistinguishable; or
    2. A certified copy of a judgment of a court in this state establishing the earlier right of the applicant to the use of the name in this state.
  4. This section does not:
    1. Abrogate or limit:
      1. The law of unfair competition or unfair practices;
      2. Chapter 47-25;
      3. The laws of the United States with respect to the right to acquire and protect copyrights, trade names, trademarks, service names, and service marks; or
      4. Any other rights to the exclusive use of any name or symbol.
    2. This section does not derogate the common law or the principles of equity.
  5. A limited liability limited partnership that is the surviving organization in a merger with one or more organizations, or that acquires by sale, lease, or other disposition to or exchange with an organization all or substantially all of the assets of another organization, including its name, may include in the limited liability limited partnership’s name, subject to the requirements of subsection 1, the name of any of the other organizations, if the other organization whose name is sought to be used:
    1. Is incorporated, organized, formed, or registered under the laws of this state;
    2. Is authorized to transact business or conduct activities in this state;
    3. Holds a reserved name in the manner provided in section 10-19.1-14, 10-32.1-12, 10-33-11, 45-10.2-11, 45-13-04.2, or 45-22-05;
    4. Holds a fictitious name registered in the manner provided in chapter 45-11;
    5. Holds a trade name registered in the manner provided in chapter 47-25; or
    6. Holds a trademark or service mark registered in the manner provided in chapter 47-22.
  6. The use of a name of a limited liability limited partnership in violation of this section does not affect or vitiate a limited liability limited partnership’s existence. However, a court in this state may, upon application of the state or of an interested or affected person, enjoin the limited liability limited partnership from doing business under a name assumed in violation of this section, although a certificate of limited liability limited partnership may have been filed with the secretary of state.
  7. A limited liability limited partnership whose period of existence has expired or that is involuntarily dissolved by the secretary of state pursuant to section 45-10.2-108 or 45-10.2-108.1 may reacquire the right to use that name by refiling a certificate of limited liability limited partnership pursuant to section 45-23-04, unless the name has been adopted for use or reserved by another person, in which case the filing will be rejected unless the filing is accompanied by a written consent or judgment as provided in subsection 3. A limited liability limited partnership that cannot reacquire the use of its limited liability limited partnership name shall adopt a new limited liability limited partnership name that complies with the provisions of this section:
    1. By refiling the certificate of limited liability limited partnership pursuant to section 45-23-04;
    2. By amending pursuant to section 45-10.2-24; or
    3. By reinstating pursuant to section 45-10.2-108, unless the name has been adopted for use or reserved by another person, in which case the filing will be rejected unless the filing is accompanied by a written consent or judgment pursuant to subsection 3.
  8. Subject to section 45-23-07, this section applies to a foreign limited liability limited partnership transacting business in this state, having a certificate of authority to transact business in this state, or applying for a certificate of authority.
  9. A limited liability limited partnership that files its certificate of limited liability limited partnership with an effective date later than the date of filing as provided in subsection 1 of section 45-23-05 shall maintain the right to the name until the effective date.

Source:

S.L. 1999, ch. 95, § 203; 2003, ch. 85, § 163; 2005, ch. 100, § 149; 2005, ch. 384, § 14; 2011, ch. 87, § 73; contingently amended by 2015, ch. 87, §§ 37, 38, effective July 1, 2015; contingently amended by 2019, ch. 93, § 14.

Note.

This section is effective upon receipt by the legislative council of the certification by the secretary of state attesting that all necessary administrative rules and information technology components and systems are ready for implementation of this Act.

45-23-04. Limited liability limited partnership formation and conversion of a limited partnership to a limited liability limited partnership or conversion of a limited liability limited partnership to a limited partnership.

  1. If a limited partnership does not exist, then a limited liability limited partnership may be formed by filing with the secretary of state, together with the fees provided in section 45-23-08, a certificate of limited liability limited partnership:
    1. That complies with the name requirements in section 45-23-03;
    2. That contains a statement that limited liability limited partnership status is elected; and
    3. That otherwise conforms to the requirements of section 45-10.2-23.
  2. An existing limited partnership:
    1. May elect to convert to a limited liability limited partnership:
      1. By obtaining the consent of each general partner to convert the limited partnership to a limited liability limited partnership unless:
        1. The certificate of limited partnership or the partnership agreement of the limited partnership provides for the conversion with the consent of less than all general partners; and
        2. Each general partner that does not consent to the amendment of conversion has consented to that provision of the partnership agreement.
      2. By complying with the name requirements of section 45-23-03; and
      3. By filing with the secretary of state, together with the fees provided in sections 45-10.2-109 and 45-23-08, a record that is designated as both an amended certificate of limited partnership and a certificate of limited liability limited partnership which:
        1. Amends the limited partnership name to comply with the name requirements of section 45-23-03;
        2. Contains a statement that limited liability limited partnership status is elected; and
        3. Otherwise conforms to the requirements of section 45-10.2-23.
    2. Which converts to a limited liability limited partnership is for all purposes the same entity that existed before the conversion.
  3. An existing limited liability limited partnership:
    1. May elect to convert to a limited partnership:
      1. By obtaining the consent of each general partner to convert the limited liability limited partnership to a limited partnership unless:
        1. The certificate of limited liability limited partnership or the partnership agreement of the limited liability limited partnership provides for the conversion with the consent of less than all general partners; and
        2. Each general partner that does not consent to the amendment of conversion has consented to that provision of the partnership agreement.
      2. By complying with the name requirements of section 45-10.2-11; and
      3. By filing with the secretary of state, together with the fees provided in sections 45-10.2-109 and 45-23-08, a record that is designated as both an amended certificate of limited liability limited partnership and a certificate of limited partnership which:
        1. Amends the limited liability limited partnership name to comply with the name requirements of section 45-10.2-11; and
        2. Otherwise conforms to the requirements of section 45-10.2-23.
    2. Which converts to a limited partnership is for all purposes the same entity that existed before the conversion.

A partner does not give the consent required by subparagraph a by consenting to a provision in the partnership agreement which permits the partnership agreement to be amended with the consent of fewer than all partners;

A partner does not give the consent required by subparagraph a by consenting to a provision in the partnership agreement which permits the partnership agreement to be amended with the consent of fewer than all partners;

Source:

S.L. 1999, ch. 95, § 203; 2005, ch. 100, § 150; 2005, ch. 384, § 15.

45-23-05. Effective date of formation or election under this chapter.

With respect to the date on which a limited liability limited partnership is formed or on which a limited partnership elects to be governed by this chapter:

  1. If a limited partnership does not exist, then a limited liability limited partnership is formed on the later of the filing of the certificate of limited liability limited partnership or the date specified in the certificate of limited liability limited partnership which is within ninety days after the filing of the certificate of limited liability limited partnership.
  2. An existing limited partnership electing to convert to a limited liability limited partnership is governed by this chapter on the later of the filing of the record designated as both an amendment to the certificate of limited partnership and a certificate of limited liability limited partnership or the date specified in that record which is within ninety days after the filing of the record.

Source:

S.L. 1999, ch. 95, § 203; 2005, ch. 100, § 151.

45-23-06. General partner liability.

An obligation of a limited liability limited partnership, whether arising in contract, tort, or otherwise, is solely the obligation of the limited liability limited partnership.

  1. A general partner is not personally liable, directly or indirectly by way of contribution or otherwise, for an obligation of the limited liability limited partnership solely by reason of being or acting as a general partner.
  2. This section applies notwithstanding anything inconsistent in the partnership agreement.

Source:

S.L. 1999, ch. 95, § 203; 2005, ch. 100, § 152.

45-23-07. Foreign limited liability limited partnership.

With respect to a foreign limited liability limited partnership, in any case not provided for in this chapter, chapter 45-10.2 and section 45-23-02 shall govern.

Source:

S.L. 1999, ch. 95, § 203; 2005, ch. 100, § 153; 2005, ch. 384, § 16.

45-23-08. Secretary of state — Fees for filing records. [Contingent effective date – See note]

The secretary of state shall charge and collect for:

  1. Filing a certificate of limited liability limited partnership, one hundred ten dollars.
  2. Filing a certificate of limited liability limited partnership amendment, forty dollars.
  3. Filing a statement of conversion of a limited liability limited partnership, fifty dollars and:
    1. If the organization resulting from the conversion will be a domestic organization governed by the laws of this state, then the fees provided by the governing laws to establish or register a new organization like the organization resulting from the conversion; or
    2. If the organization resulting from the conversion will be a foreign organization that will transact business in this state, then the fees provided by the governing laws to obtain a certificate of authority or register an organization like the organization resulting from the conversion.
  4. Filing abandonment of conversion, fifty dollars.
  5. Filing limited liability limited partnership articles of merger, fifty dollars.
  6. Filing abandonment of merger or exchange, fifty dollars.
  7. Filing a limited liability limited partnership statement of correction, forty dollars.
  8. Filing a certificate of limited liability limited partnership dissolution, twenty-five dollars.
  9. Filing a certificate of limited liability limited partnership cancellation, twenty-five dollars.
  10. Filing a reservation of limited liability limited partnership name, ten dollars.
  11. Filing a notice of transfer of reserved limited liability limited partnership name, ten dollars.
  12. Filing a cancellation of a reserved limited liability limited partnership name, ten dollars.
  13. Filing a consent to use a name, ten dollars.
  14. Filing a statement of change of address of registered office or change of registered agent, or both, or a statement of change of address of registered office by registered agent, the fee provided in section 10-01.1-03.
  15. Filing a registration of foreign limited liability limited partnership, one hundred ten dollars.
  16. Filing a certified statement of amendment of foreign limited liability limited partnership, twenty-five dollars.
  17. Filing a certified statement of dissolution of foreign limited liability limited partnership, twenty-five dollars.
  18. Filing a certified statement of merger of foreign limited liability limited partnership, fifty dollars.
  19. Filing a certified statement of conversion of foreign limited liability limited partnership, fifty dollars and:
    1. If the organization resulting from the conversion will be a domestic organization governed by the laws of this state, then the fees provided by the governing laws to establish or register a new organization like the organization resulting from the conversion; or
    2. If the organization resulting from the conversion will be a foreign organization that will transact business in this state, then the fees provided by the governing laws to obtain a certificate of authority or register an organization like the organization resulting from the conversion.
  20. Filing a certified statement of cancellation of foreign limited liability limited partnership, twenty-five dollars.
  21. Filing a statement of withdrawal of foreign limited liability limited partnership, twenty-five dollars.
  22. Filing an annual report of limited liability limited partnership, twenty-five dollars.
    1. The secretary of state shall charge and collect additional fees for late filing of the annual report as follows:
      1. After the date provided in subsection 3 of section 45-10.2-108, twenty dollars; and
      2. After the dissolution of the limited liability limited partnership or the revocation of the registration of a foreign limited liability limited partnership, the reinstatement fee of one hundred dollars.
    2. Fees paid to the secretary of state according to this subsection are not refundable if an annual report submitted to the secretary of state cannot be filed because it lacks information required by section 45-10.2-108 or the annual report lacks sufficient payment as required by this subsection.
  23. Any record submitted for approval before the actual time of submission for filing, one-half of the fee provided in this section for filing the record.
  24. Filing any process, notice, or demand for service, the fee provided in section 10-01.1-03.
  25. Furnishing a certificate of existence or authorization:
    1. Fifteen dollars; and
    2. Five dollars for a search of records.
  26. Furnishing a certified copy of any record or paper relating to a limited partnership or foreign limited partnership:
    1. The fee provided in section 54-09-04 for copying a record;
    2. Fifteen dollars for the certificate and affixing the seal thereto; and
    3. Five dollars for a search of records.

Source:

S.L. 1999, ch. 95, § 203; 2005, ch. 100, § 154; 2005, ch. 384, § 17; 2007, ch. 99, § 82; 2009, ch. 106, § 76; contingently amended by 2015, ch. 86, § 23, effective July 1, 2015; contingently amended by 2019, ch. 93, § 15.

Note.

This section is effective upon receipt by the legislative council of the certification by the secretary of state attesting that all necessary administrative rules and information technology components and systems are ready for implementation of this Act.

45-23-09. Secretary of state — Confidential records.

Any social security number or federal tax identification number disclosed or contained in any record filed with the secretary of state under this chapter is confidential. The secretary of state shall delete or obscure any social security number or federal tax identification number before a copy of any record is released to the public.

Source:

S.L. 2003, ch. 85, § 164; 2005, ch. 100, § 155.