Anderson v. Carden

934 P.2d 562, 146 Or. App. 675, 1997 Ore. App. LEXIS 225
CourtCourt of Appeals of Oregon
DecidedMarch 5, 1997
Docket9105-02998; CA A75835 (Control); 9105-03051; CA A75864
StatusPublished
Cited by10 cases

This text of 934 P.2d 562 (Anderson v. Carden) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. Carden, 934 P.2d 562, 146 Or. App. 675, 1997 Ore. App. LEXIS 225 (Or. Ct. App. 1997).

Opinions

[678]*678LANDAU, J.

Plaintiffs initiated this action for securities fraud arising out of their purchase of limited partnership interests in 1983. Defendants1 moved for summary judgment on the ground that the matter is governed by a three-year statute of limitations. Plaintiffs responded that their action was timely brought under a different statute of limitations, which allows them to bring the action within two years of discovery of defendants’ conduct. Defendants replied that, even if the alternative statute of limitations applies, plaintiffs did not bring their action within two years of discovery. The trial court concluded that this matter is subject to a three-year statute of limitations and, on that ground, entered summary judgment for defendants. The trial court expressly did not address the parties’ other arguments. We conclude that the trial court erred, that the matter is subject to the statute of limitations requiring initiation of the action within two years of discovery and that the matter must be remanded for consideration of the parties’ arguments as to the timeliness of the filing under that statute of limitations.

Plaintiffs allege that they purchased securities in a single private placement in 1983. They allege that a number of untrue statements of material fact and omissions of material facts were made in connection with the sale of the securities. The nature of those alleged misstatements and omissions is not pertinent to the disposition of this appeal. Plaintiffs allege that defendants participated or materially aided in the sale of the securities by preparing, among other things, the offering memorandum and supporting documentation, a tax opinion letter, projections and appraisals. Plaintiffs allege that they first discovered the nature of the misstatements and omissions in April 1991 and that they had no reason to know of those facts before that time.

[679]*679Plaintiffs allege that the sellers violated ORS 59.135. That statute provides, in relevant part:

“It is unlawful for any person, directly or indirectly, in connection with the purchase or sale of any security or the conduct of a securities business or for any person who receives any consideration from another person primarily for advising the other person as to the value of securities or their purchase or sale, whether through the issuance of analyses or reports or otherwise:
“(1) To employ any device, scheme or artifice to defraud;
“(2) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading;
“(3) To engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon anyperson[.]”

Plaintiffs further allege that defendants participated and materially aided in the sale and are therefore liable under ORS 59.115(3). That statute provides, again in relevant part:

“[E]very person who participates or materially aids in the sale is also liable jointly and severally with and to the same extent as the seller [.]”

Defendants moved for summary judgment on the basis of ORS 59.115(6) (1985),2 which generally describes the statute of limitations for civil actions for damages based on violations of the Oregon securities laws:

“No action or suit may be commenced under this section more than three years after the sale except an action for a violation of ORS 59.135, which may be commenced within three years after the sale or two years after the person bringing the action discovered or should have discovered the facts on which the violation of ORS 59.135 is based, [680]*680whichever is later. Failure to commence an action on a timely basis is an affirmative defense.”

According to defendants, the general rule that securities claims are subject to a three-year statute of limitations is subject to one exception, namely, actions brought under ORS 59.135. Plaintiffs’ complaint, they argued, states a claim against the sellers for violating ORS 59.135 but against the nonseller defendants for violating ORS 59.115(3) only. Because actions brought for violations of that statute are not within one of the two exceptions to the general three-year statute of limitations, defendants concluded, the complaint is time-barred.

Plaintiffs argued that they have, in fact, brought an action “under this section for violation of ORS 59.135.” According to plaintiffs, the basis of their claim against defendants “is their alleged liability under ORS 59.115(3) for having materially aided or participated in the sale of securities in violation of ORS 59.135.” (Emphasis in original.)

Defendants argued in the alternative that, even if the exception for actions brought for violations of ORS 59.135 applies, plaintiffs’ action still is untimely, because the undisputed evidence conclusively demonstrates that plaintiffs knew or should have known of the misstatements or omissions on which their action is based more than two years before filing the complaint. Plaintiffs disputed the evidence as to that argument.

The trial court agreed with defendants that the complaint was untimely filed, because the three-year statute of limitations applies. On appeal, plaintiffs assign error to the trial court’s ruling. Defendants contend that the trial court was correct and, in any event, should be affirmed on the alternative ground that the action was not timely commenced even under the alternative statute of limitations.

The appeal turns on the proper interpretation of ORS 59.115(6) (1985), which sets forth the applicable statute of limitations. We attempt to construe the statute in accordance with the intention of the legislature, looking to the text of the statute in its context and, if necessary, to its history and to other interpretive aids. PGE v. Bureau of Labor and [681]*681Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993).

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Anderson v. Carden
934 P.2d 562 (Court of Appeals of Oregon, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
934 P.2d 562, 146 Or. App. 675, 1997 Ore. App. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-carden-orctapp-1997.