FLYNN, J.
Plaintiffs appeal a judgment for defendant Jerry O. Anderson
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 liability 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
Four years later, Anderson Builders was experiencing financial difficulty, and approached plaintiffs about a 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.
The parties' dispute turns on the meaning of ORS 63.165(1), which provides:
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 Material Handling Group, 356 Or. 254, 265, 337 P.3d 111
The text of ORS 63.165(1) expressly describes the scope of the limited immunity it creates as extending to "debts, obligations and liabilities of a limited liability company." In other words, the text indicates that the legislature equated the test for whether an LLC member is vicariously liable for an obligation undertaken in the name of the LLC with the test for whether the LLC is responsible for the obligation. If the transaction creates a debt, obligation, or liability of the LLC, then members of the LLC are not personally liable for the debt "solely by reason of being or acting as a member" of the LLC.
Although, as plaintiffs emphasize, a dissolved corporation is only authorized to carry on business "appropriate to wind up and liquidate its business and affairs," the legislature has provided that other post-dissolution transactions can still create an obligation for which the LLC is responsible. Specifically, ORS 63.629 provides that members of an LLC can bind the LLC through post-dissolution transactions, and thus create a debt of the LLC, if the transaction is "appropriate for winding up," but also if the transaction is entered into with a party that does not have "actual notice" it is transacting with a dissolved corporation or if the action of the LLC member is "otherwise authorized or ratified" by the LLC. Moreover, the legislature has provided that those obligations of the LLC can be enforced through an action against the dissolved LLC or, if the LLC's assets have already been distributed, to recover from the assets distributed to members. ORS 63.637(2)(c); ORS 63.645(2). As even unauthorized post-dissolution business can give rise to debts enforceable against the LLC, there is no textual support for plaintiffs' argument that ORS 63.165 applies only to post-dissolution transactions that are appropriate to "winding up" the LLC.
Although there may be intuitive appeal to the concept that there should be some consequence when an LLC continues to carry on regular business after allowing itself to be administratively dissolved, three aspects of the broader statutory context convince us that the legislature did not intend to make personal liability for LLC members that consequence. First, the legislature chose to allow LLC members to easily eliminate the restrictions on business activity that follow an administrative dissolution. ORS 63.654 provides that an administratively dissolved LLC can obtain retroactive reinstatement by correcting the grounds for dissolution. Thus, not only has the legislature made it easy for an administratively dissolved LLC to regain full authority to transact business, it also has made it easy for an LLC that transacts unauthorized business during the dissolution window to retroactively authorize that business.
Second, the potentially temporary nature of a period of administrative dissolution also makes an unauthorized transaction during that period of delinquency analogous to the unauthorized transactions by a corporation during a period of corporate delinquency that we said did not give rise to personal liability for the corporate directors under statutory provisions similar to the LLC provisions. Creditors Protective Assn. v. Baksay, 32 Or.App. 223, 226-27, 573 P.2d 766 (1978). In Baksay, we addressed an obligation
Id. at 226, 573 P.2d 766 (internal citations omitted). We concluded that the statutory scheme made it "clear that the legislature did not intend for delinquency to give rise to personal liability" both because the statutes provided no express right of action against the individual corporate officers and because the statutes permitted creditors to enforce obligations resulting from such unauthorized transactions against the corporation's assets. Id. at 226-27, 573 P.2d 766. Both are true of the statutory scheme governing LLC's as well—the legislature has not expressly provided for enforcement of the LCC's post-dissolution debts against LLC members and has expressly provided a mechanism for recovering the debt from the assets of the LLC. As in Baksay, those aspects of the LLC statutory scheme indicate that the legislature did not intend the limitation on a dissolved LLC's business transactions to expose members of the LLC to personal liability for unauthorized transactions following administrative dissolution.
Finally, the legislature made clear its preference that members of an LLC should not be exposed to personal liability for a debt of the LLC solely because the LLC engaged in an unauthorized transaction in the way that it has addressed liability for unauthorized transactions by foreign LLCs. That part of the Oregon Limited Liability Company Act (LLC Act) specifies that foreign limited liability companies must obtain authority from the Secretary of State before transacting business in Oregon, ORS 63.707, but also specifies that members of the foreign LLC do not acquire personal liability for a debt solely because the foreign LLC transacted business without authority to do so in Oregon:
ORS 63.704(6). That statement of the scope of limited liability for members of a foreign LLC was enacted as part of the same bill that enacted ORS 63.165, the limited liability provisions for members of an Oregon LLC. Or. Laws 1993, ch. 173, §§ 35, 76. The statement in ORS 63.704(6) expresses the legislature's policy choice that personal liability for LLC members is not the consequence for an LLC engaging in unauthorized business. It reinforces our conclusion that the legislature intended the scope of ORS 63.165 immunity to be as broad as the text indicates.
Thus, both the text of ORS 63.165 and the statutory scheme the legislature adopted for LLCs lead us to conclude that the legislature did not intend to make members of an LLC personally liable for debts of the LLC solely because the debt arises from an unauthorized business transaction following an administrative dissolution.
Plaintiffs' argument for a more limited scope to ORS 63.165 primarily relies on language that the 1995 legislature added to ORS 63.637, a statute that addresses the activity of an LLC following dissolution. That added language provides that, when an LLC has been dissolved, "[t]he limitation on personal liability otherwise provided in this chapter for members and managers shall continue following dissolution for actions appropriate to the winding up and liquidation." ORS 63.637(1). According to plaintiffs, the express extension of immunity for post-dissolution actions appropriate to "winding up and liquidation" implies a rejection of immunity for all other post-dissolution actions of the
As a later-enacted provision, we do not treat the language added to ORS 63.637 in 1995 as context for what the 1993 legislature intended to include with the scope of the limited immunity provided in ORS 63.165. See Gaines, 346 Or. at 177 n. 16, 206 P.3d 1042 ("Ordinarily, only statutes enacted simultaneously with or before a statute at issue are pertinent context for interpreting that statute"). Thus, the question is whether the language added to ORS 63.637 restricts the immunity described in ORS 63.165. We conclude that it does not.
First, the statement that LLC members retain immunity from personal liability when the dissolved LLC engages in business necessary to "wind up and liquidate" the LLC does not expressly create personal liability for other post-dissolution activity, i.e., it does not provide that limited liability continues "only" for business necessary to wind up the dissolved LLC. Nor is the proposition announced by ORS 63.637 logically equivalent to a statement expressly creating personal liability for members when the dissolved LLC engages in other types of post-dissolution activity.
Although legislative history does not explain why the 1995 legislature added the language to ORS 63.637, it suggests that the legislature did not amend ORS 63.637 to create personal liability for LLC members solely because the LLC has engaged in ongoing business activity after being administratively dissolved. The key portion of ORS 63.637 was added to the existing LLC Act as part of Senate Bill (SB) 63 (1995), a bill proposed by the Oregon State Bar Limited Liability Task Force. Although the amendment to ORS 63.637 was part of the bill from the outset, it is not mentioned in any of the testimony or comments during the committee discussions. Nor do the stated purposes of the bill suggest that the addition to ORS 63.637 was intended to increase the potential for LLC members to acquire personal liability. Purposes that the sponsors of SB 63 considered "major" were to clarify that professionals can offer professional services under the LLC structure, to clarify that workers' compensation laws apply to LLCs, to properly cross-reference LLCs in other statutes applicable to LLCs, and to make it easier for family controlled LLCs to transfer control to a new (likely younger) group of family members. Testimony, Senate Judiciary Committee, SB 63, Jan. 16, 1995, Ex. E (statement of Donald W. Douglas and Mark A. Golding, Co-Chairs of the Limited Liability Company Task Force). The clear message conveyed to the legislature by the sponsors of SB 63 was that operating under an LLC structure offers many advantages to Oregon businesses, including the limited liability for members; that the LLC option had proved to be a very popular entity choice for Oregon businesses; and that the amendments proposed by SB 63 would "result in even greater use and acceptance of LLC[s]." Id. That message would be inconsistent with a legislative intent to increase the risk of personal liability to LLC members.
We do not suggest that the added language is meaningless. See, e.g., State v. McAnulty, 356 Or. 432, 338 P.3d 653 (2014) (court must construe statutes in a way that does not render any provision meaningless). But we need not presume that the 1995 legislature added that language to ORS 63.637 for the reason plaintiffs propose—to implicitly restrict the scope of the limited liability described in ORS 63.165. Instead, the additional provision could have been prompted by the very premise underlying the parties' dispute below—the premise that LLC members will be personally liable for post-dissolution obligations if they have actual knowledge that the LLC was dissolved.
In Sivers v. R & F Capital Corp., 123 Or.App. 35, 858 P.2d 895 (1993), rev. den., 318 Or. 351, 870 P.2d 220 (1994), in the course of considering the scope of a knowledge provision of the Corporations Act that is nearly identical to a knowledge provision in the LLC Act,
Id. at 38, 858 P.2d 895 (brackets in Sivers).
Although our decision in Sivers discussed the "knowledge" rule in the context of transactions prior to incorporation, the language of the knowledge statutes it considered is not explicitly limited to pre-incorporation liability.
We do not construe the amendment, added as part of a bill to increase the appeal of the LLC businesses structure, as intended to implicitly create greater potential for members of an LLC to be held personally liable for debts of the LLC. Thus, we construe the scope of the limited immunity created by ORS 63.165 as extending—as the text indicates—to post-dissolution obligations of the LLC, regardless of whether the obligation arises from business unrelated to winding up the LLC.
We emphasize that our decision addresses only the extent to which LLC members are liable for debts of the LLC "solely by virtue of being a member in the LLC," i.e., the extent to which the members are vicariously liable for debts of the LLC. See ORS 63.165; Cortez, 356 Or. at 265, 337 P.3d 111. We are not called upon to decide whether there was another basis to hold defendant individually liable for the loan obligation to plaintiffs or whether defendant would have been liable if plaintiffs had proved that he had actual knowledge of the dissolution.
Affirmed.
ORS 63.651 provides, in pertinent part:
ORS 63.054 provides: