Wohrman v. Rogers

362 P.3d 704, 274 Or. App. 846, 2015 Ore. App. LEXIS 1315
CourtCourt of Appeals of Oregon
DecidedNovember 12, 2015
Docket1001193CV; A150057
StatusPublished

This text of 362 P.3d 704 (Wohrman v. Rogers) 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
Wohrman v. Rogers, 362 P.3d 704, 274 Or. App. 846, 2015 Ore. App. LEXIS 1315 (Or. Ct. App. 2015).

Opinion

FLYNN, J.

Plaintiffs appeal a judgment for defendant Jerry O. Anderson1 on plaintiffs’ action to recover on a loan that plaintiffs made to JJR Enterprises, LLC (JJR), an Oregon limited liability company of which defendant was a member. Plaintiffs alleged that defendant was personally liable on the promissory note for the loan to JJR, in the way that a general partner would be liable for a loan to a partnership, because JJR had been administratively dissolved prior to taking on the loan agreement. The trial court ruled that, because defendant lacked actual knowledge of the dissolution, he is protected from personal liability for the loan under ORS 63.165. That statute provides that members of a limited liability company (LLC) are not personally liable for debts, obligations or liabilities of the LLC “solely by reason of being or acting as a member or manager.” Plaintiffs assign error to the court’s ruling and argue that, for obligations that the LLC undertakes after dissolution, members retain the protection described in ORS 63.165 only if the obligation arises from a transaction that was appropriate to winding up and liquidating the LLC. We conclude that the scope of ORS 63.165 is not as limited as plaintiffs contend; that members of a dissolved LLC do not become liable for obligations of the LLC solely because they arise from a post-dissolution transaction that was unrelated to winding up and liquidating the LCC. Accordingly, we affirm.2

I. BACKGROUND

The essential facts are largely undisputed. In the 1970s, defendant incorporated a construction business called Anderson Builders, Inc. Defendant worked at Anderson Builders with his son, Jeffrey Anderson (JA), and with Edward Rogers. In 1999, defendant, JA, and Rogers formed JJR, and registered it as an Oregon limited [849]*849liability company. Each of the three members held a one-third interest in JJR. The articles of organization filed with the Secretary of State in 1999 list defendant as both the “organizer” and registered agent for JJR. The filing gave a business address for JJR that was also the business address for Anderson Builders.

In 2003, defendant sold Anderson Builders to JA and Rogers. Also in 2003, Anderson Builders and JJR sold a jointly developed property. After that sale, JJR engaged in no business activity apart from holding title to some real property.

In March 2004, the Corporation Division of the Oregon Secretary of State issued a notice to JJR, at the business address it shared with Anderson Builders, advising that JJR had failed to file its annual report and fee and needed to correct those omissions within 45 days to avoid having the entity’s status changed to “inactive.” When JJR failed to file the annual fee and report, the Secretary of State then administratively dissolved JJR as of April 30, 2004.3 The administrative dissolution meant that JJR “continues its existence but may not carry on any business except that which is appropriate to wind up and liquidate its business and affairs.” ORS 63.637(1).

Four years later, Anderson Builders was experiencing financial difficulty, and approached plaintiffs about [850]*850a loan. Plaintiff William Wohrman, as trustee for the Wohrman Family Revocable Living Trust, was willing to loan money only if the lenders could take a security interest in property that was free of prior encumbrances. Anderson Builders owned no property meeting that requirement but obtained defendant’s agreement to use property owned by JJR as security for a loan from plaintiffs of $52,000. Rogers signed a promissory note for the loan on behalf of “JJR Enterprises LLC.” JJR then transferred $50,000 to Anderson Builders and applied $2,000 to pay delinquent property taxes so that plaintiffs could have the first lien on the property. It is undisputed that the loan transaction was not a transaction related to winding up and liquidating JJR.

When Anderson Builders stopped making its loan payments, plaintiffs brought this action for breach of contract, seeking payment from defendant personally for the amount of the loan obligation. Defendant responded that ORS 63.165 prevents plaintiffs from holding him personally liable for the debt solely on the basis of his membership in JJR and that there was no other basis to hold him personally liable for the debt. At trial, plaintiffs contended that defendant could be held personally liable for the loan obligation based on his membership in JJR, because the evidence established that defendant had actual knowledge of the dissolution or, alternatively, because ORS 63.165 provides no protection to members of an LLC for obligations that the LLC incurs after dissolution if the transaction was unrelated to winding up and liquidating the LLC. The trial court rejected both of plaintiffs’ arguments and entered judgment for defendant. On appeal, plaintiffs do not challenge the court’s finding that defendant lacked actual knowledge of JJR’s dissolution, but they assign error to the court’s conclusion that defendant is entitled to protection from personal liability under ORS 63.165.4

II. ANALYSIS

The parties’ dispute turns on the meaning of ORS 63.165(1), which provides:

[851]*851“The debts, obligations and liabilities of a limited liability company, whether arising in contract, tort or otherwise, are solely the debts, obligations and liabilities of the limited liability company. A member or manager is not personally liable for a debt, obligation or liability of the limited liability company solely by reason of being or acting as a member or manager.”

As the Supreme Court has emphasized, “[e]ach sentence makes clear, in a different way, that a member or a manager of an LLC is not vicariously liable for the LLC’s debts, obligations, and liabilities, as a general partner will be vicariously liable for the partnership’s obligations.” Cortez v. Nacco Materials Handling Group, 356 Or 254, 265, 337 P3d 111 (2014).5 Cortez does not address, however, whether that immunity changes if the obligation arises from a post-dissolution transaction. To resolve that question of statutory construction we begin by considering the text and context of ORS 63.165. See State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009) (stating that text and context “must be given primary weight” in statutory construction analysis).

A. Analysis of the Statutory Language

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Related

State v. Gaines
206 P.3d 1042 (Oregon Supreme Court, 2009)
Sivers v. R & F CAPITAL CORP.
858 P.2d 895 (Court of Appeals of Oregon, 1993)
Creditors Protective Ass'n, Inc. v. Baksay
573 P.2d 766 (Court of Appeals of Oregon, 1978)
Cortez v. Nacco Materials Handling Group, Inc.
337 P.3d 111 (Oregon Supreme Court, 2014)
State v. McAnulty
338 P.3d 653 (Oregon Supreme Court, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
362 P.3d 704, 274 Or. App. 846, 2015 Ore. App. LEXIS 1315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wohrman-v-rogers-orctapp-2015.