Shelter Mortgage Corp. v. Castle Mortgage Co., (10th Cir. 2004)

Text

---

UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

SHELTER MORTGAGE

CORPORATION,

Plaintiff - Appellee,

v.



CASTLE MORTGAGE COMPANY,

L.C.; LYNN E. WARDLEY,

Defendants - Appellants.

No. 02-4037

(D. Utah)

(D.Ct. No. 2:98-CV-160-S)

ORDER AND JUDGMENT
name="txt*">(*)

Before LUCERO,
name="9">BALDOCK, and O'BRIEN,

Circuit Judges.

This is a breach of contract dispute arising out of a failed joint venture

between Castle Mortgage Company, L.C., a Utah limited liability company

(Castle), and Shelter Mortgage Corporation, a Wisconsin corporation (Shelter).

Shelter commenced this diversity action, seeking to recover half of the venture's

losses from Castle and to hold Lynn Wardley, one of the founders and original

managers of Castle, personally liable for Castle's debts. Castle and Wardley

appeal the summary judgment granted to Shelter and the entry of judgment

against them, jointly and severally, for $362,352.86.
name="txt1a">(1) Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

Background

Prior to July 1994, Shelter began negotiations with Wardley to create a

joint venture between Shelter and an entity owned or controlled by Wardley.

Wardley was a successful real estate broker; Shelter was experienced in the

business of originating and funding residential mortgage loans on a wholesale

and retail basis. The joint venture would conduct a residential mortgage banking

business in the State of Utah.

The negotiations produced a joint venture agreement (Agreement) between

Shelter and Castle. The Agreement entitled the joint venture "Shelter Mortgage

Company Partnership No. 600" and was dated October 31, 1994.
name="txt2a">(2) After twenty-nine months of operation, Castle elected to

terminate the venture pursuant to the

provisions of the Agreement, effective April 20, 1997. The venture lost

$495,740.00. Despite Shelter's demands for payment of half the loss, Castle

refused to pay any portion.

On March 9, 1998, Shelter sued Castle, but not Wardley, in the United

States District Court for the District of Utah. Castle counterclaimed and asserted

two affirmative defenses: (1) Wardley was fraudulently induced to enter into the

Agreement by Shelter's misrepresentations and assurances that Castle would not

incur liability, and (2) Shelter's failure to perform its obligations under the

Agreement amounted to a prior material breach excusing Castle's

nonperformance. During the course of the litigation, Shelter was allowed to

amend its complaint to assert a claim against Wardley personally for Castle's

debts and liabilities. The new claim was based on the nature of Wardley's

business activities on Castle's behalf prior to December 22, 1994, the date

Castle's articles of organization were filed. Wardley and Castle filed an amended

answer and counterclaim reasserting fraud and material breach.

In January 2000, the district court granted partial summary judgment for

Shelter and against Castle and Wardley. The district court struck portions of

Wardley's affidavit in support of his affirmative defenses, ruling these portions

contained impermissible hearsay, legal conclusions and parol evidence. The

district court determined the remaining allegations were insufficient to create a

genuine dispute of material fact. Concluding the Agreement was clear,

unambiguous, and integrated, it held the parties were subject to its terms as

written and Castle was liable to Shelter for half the debt. Because Wardley

signed the Agreement before Castle's articles of organization were filed,
name="txt3a">(3) it held

Wardley jointly and severally liable for Castle's share of the debts and

obligations arising from the Agreement. On March 31, 2000, Shelter moved for

an award of pre-judgment interest, attorney's fees and final judgment. On

October 17, 2001, Wardley moved to set aside the interlocutory judgment,

requested leave to amend his answer and to bring a third party complaint against

the lawyers who represented him when forming Castle. The basis for his motion

was his alleged discovery that he had not signed the Agreement in October 1994,

as he had previously admitted in his answer. He claimed he had forgotten the

Agreement was predated. It was only when he saw a letter from his former

attorney that he remembered he signed the Agreement after Castle's organization.

The court denied Wardley's motion, finding any merit to these claims was clearly

outweighed by Wardley and Castle's inexcusable delay and refusal to comply

with the court's discovery orders.(4) The

district court granted Shelter's motion for

award of attorney's fees and pre-judgment interest, and entered final judgment. On appeal,

Castle and Wardley argue their affirmative defenses raised

material issues of fact, precluding summary judgment. Individually, Wardley

contests the district court's decision to hold him personally liable because a

factual dispute exists as to whether the parties intended that result. He further

maintains that even if he is held personally responsible, his personal liability

ceased on the date Castle's articles of organization were filed. Wardley and

Castle also dispute the amount of the judgment. Both argue the amount of

Castle's initial contribution to the joint venture, in the form of assets as opposed

to cash, should have been subtracted from Castle's portion of the loss.

Standard of Review

We review the district court's summary judgment ruling de novo,

employing the same legal principles as the district court and construing the

factual record and the reasonable inferences therefrom in the light most favorable

to the party opposing summary judgment. Byers v. City of Albuquerque, 150 F.3d

1271, 1274 (10th Cir. 1998); Kane v. Capital Guardian Trust Co., 145 F.3d

1218, 1221 (10th Cir. 1998). Summary judgment is appropriate if the record

shows "there is no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "If our

inquiry reveals no genuine issue of material fact in dispute, then we review the

case to determine if the district court correctly applied the substantive law."

Gamble, Simmons & Co. v. Kerr-McGee Corp., 175 F.3d 762, 766 (10th Cir.

1999) (citing Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996)).

Discussion

The district court determined Wardley and Castle's affirmative defenses

were insufficient to avoid summary judgment. We agree.

Fraud

Castle and Wardley asserted Wardley was fraudulently induced to enter

into the Agreement by Shelter's misrepresentations and assurances that Castle

would incur no liability. The factual linchpin of the fraud accusation is

Wardley's affidavit, and specifically, the portions struck by the district court. In

it, he echoes the allegations in the counterclaim describing false representations

made by Shelter, reasonable reliance on those representations, and damage

resulting therefrom. Wardley and Castle argue the allegations, as they appear in

the affidavit, should have been admissible parol evidence and considered when

determining the fraud claim.

Admissibility of a summary judgment affidavit is an evidentiary question.

Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 894-95 (1990).

We review a district court's decision to exclude evidence at the

summary judgment stage for abuse of discretion. Under this

standard we will not disturb the district court's decision 'unless [we

have] a definite and firm conviction that the lower court made a

clear error of judgment or exceeded the bounds of permissible choice

in the circumstances.'

Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1016 (10th Cir. 2002) (quoting

United States v. Ortiz, 804 F.2d 1161, 1164 n.2 (10th Cir. 1986)).

"The parol evidence rule is a rule of substantive law. Under the doctrine

of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L.Ed. 1188 (1938), we

must apply state law." Elec. Dist., Inc. v. SFR, Inc., 166 F.3d 1074, 1082, n.3

(10th Cir. 1999). Consequently, we look to Utah law for instruction. Generally,

the parol evidence rule in Utah operates "to exclude evidence of

contemporaneous conversations, representations, or statements offered for the

purpose of varying or adding to the terms of an integrated contract." Hall v.

Process Instruments & Control, Inc., 890 P.2d 1024, 1026 (Utah 1995). "If a

contract is unambiguous, the intentions of the parties must be determined [solely]

from the words of the agreement." Lee v. Barnes, 977 P.2d 550, 552 (Utah Ct.

App. 1999). However, when determining whether an agreement is integrated the

court must consider all admissible evidence. Hall, 890 P.2d at 1026.

Even if a contract is otherwise integrated, parol evidence is admissible

when the evidence is offered to show fraud in the inducement. Union Bank v.

Swenson, 707 P.2d 663, 667 (Utah 1985). In Union, the Utah Supreme Court

stated: If a parol contemporaneous agreement be the inducing cause of the

written contract, or forms a part of the consideration therefor, and it

appears the writing was executed on the faith of the parol agreement or

representation, extrinsic evidence is admissible. In such cases, the real

basis for its admission is to show fraud.

Id.

The trial court struck "offending portions" of Wardley's affidavit

containing "inadmissable [sic] hearsay, assertions barred by the parol evidence

rule, and impermissible legal conclusions . . . ." (Appellants' App. at 120.) It

did not specifically identify which portions were struck and why. It also made its

ruling prior to considering whether the Agreement was integrated and prior to

considering Wardley's claim of fraud. As a result, while the district court

correctly struck inadmissible hearsay and inadmissible legal conclusions,

admissible evidence barred only by the parol evidence rule should have been

considered for the limited purposes of the fraud in the inducement claim.

Nonetheless, Wardley and Castle's fraud claim fails. In his affidavit,

Wardley contends Shelter promised that "Castle would not incur any debts or

liabilities as a result of the Agreement," Shelter had "experience and expertise"

which would preclude losses, and Castle's contribution could be made "in kind."

(Appellants' App. at 99-100.) Even if true, in light of the express terms of the

Agreement, these allegations fail to establish Wardley's reasonable reliance on

pre-Agreement promises.

While reasonable reliance is usually a question of fact for the jury, Armed

Forces Ins. Exch. v. Harrison, 70 P.3d 35, 45 (Utah 2003), under Utah law "a

party cannot reasonably rely upon oral statements by the opposing party in light

of contrary written information." Gold Standard, Inc. v. Getty Oil Co., 915 P.2d

1060, 1068 (Utah 1996). The Utah Supreme Court explained:

The one who complains of being injured by such a false

representation cannot heedlessly accept as true whatever is told him,

but has the duty of exercising such degree of care to protect his own

interests as would be exercised by an ordinary, reasonable and

prudent person under the circumstances; and if he fails to do so, is

precluded from holding someone else to account for the

consequences of his own neglect.

Id. (quotation marks omitted).

The written Agreement precludes any claim of reasonable reliance on

Shelter's oral statements. Castle and Wardley fail to identify any provision in the

Agreement implying ambiguity as to the parties' intent. The Agreement contains

an integration clause with an express disclaimer of reliance on any

representations outside of the written Agreement. Section 12.7, entitled

"Integration," reads in part:

The making, execution and delivery of this Agreement by the parties

hereto have been induced by no representations, warranties,

statements, agreements other than those expressed in this Agreement.

This Agreement embodies the entire understanding of the parties,

and there are no further or other agreements or understandings,

written or oral, in effect between the parties relating to the subject

matter hereof . . . .

(Appellants' App. at 243.) In addition, the Agreement clearly requires an initial

capital contribution of $25,000 from each venturer and allocates net profits and

losses equally between Castle and Shelter.

Because the Agreement explicitly states it is an integrated document,

warrants the parties did not rely on oral representations, and expressly allocates

potential losses equally, the element of reasonable reliance is absent and Castle

and Wardley's fraud claim disintegrates.

Excused Performance

Wardley and Castle next assert Shelter's failure to perform its obligations

under the Agreement is a material breach excusing Castle's nonperformance.

Specifically, they allege Shelter failed to: (1) prepare and submit a business plan

for the joint venture's operations for the first two fiscal years; (2) prepare and

deliver an initial operating budget, including projections for all operating costs

and expenses to be included for the first fiscal year; (3) limit expenditures and/or

obligations solely to those approved in the operating budget and/or business plan;

and (4) provide Castle and Wardley with reports and information, and generally

keep them fully apprised as to the joint venture's business and operations.

A material breach of contractual obligations may justify non-performance

by the other party. Coalville City v. Lundgren, 930 P.2d 1206, 1209 (Utah Ct.

App.) (a material breach by one party to a contract excuses further performance

by the non-breaching party). "What constitutes a material breach is a question of

fact." Id. Even so,

[i]t is not every minor failure, which could otherwise be
name="Document0zzSDUNumber10">remedied,

which will justify non-performance. It must be something so

substantial that it could be reasonably deemed to vindicate the

other's refusal to perform; and this is a matter of affirmative excuse

or justification, which the party so claiming has the burden of

demonstrating.

Zion's Prop., Inc. v. Holt, 538 P.2d 1319, 1321 (Utah 1975). Shelter argues its

failure to perform does not rise to a material breach. However, even were we to

assume Shelter's breach was material, Castle's non-performance is still not

excused.

The district court correctly concluded that Castle and Wardley could not

assert an affirmative defense of excused performance under the principles of

"waiver and/or estoppel." (Appellants' App. at 123.) A party
name="Document0zzSDUNumber23">claiming a right to

performance cannot "acquiesce in non-performance by the other party until the

time has gone by for such performance and then claim damages." Larsen v.

Knight, 233 P.2d 365, 372 (Utah 1951). The basis for this principle lies in the

concepts of waiver and estoppel.

Waiver is the intentional relinquishment of a known right. In order

for waiver to occur, there must be an existing right, benefit or

advantage, a knowledge of its existence, and an intention to

relinquish it. The party's actions or conduct must evince

unequivocally an intent to waive, or must be inconsistent with any

other intent. Whether a right has been waived is generally a question

of fact and therefore we accord considerable deference to the finder

of fact's determination. Findings of fact will be affirmed unless

clearly erroneous, that is, unless they are against the clear weight of

the evidence or we are definitely and firmly convinced the trial court

made a mistake.

Mont Trucking, Inc. v. Entrada Indus., Inc., Interstate Brick Div., 802 P.2d 779,

781 (Utah Ct. App. 1990) (citations and quotation marks omitted).

Estoppel is conduct by one party which leads another party, in

reliance thereon, to adopt a course of action resulting in detriment or

damage if the first party is permitted to repudiate his conduct. To

find estoppel, three elements must be present: (1) a representation,

act, or omission, (2) justifiable reliance, and (3) a change of position

to one's detriment based on that reliance. [I]t should be noted that

estoppel [also] presents a question of fact.

Id. at 782 (citations and quotation marks omitted).

Although Shelter did not provide Castle with reports, plans and financial

documents, there is no evidence Castle gave Shelter notice of its alleged breach

or even requested the omitted documents. In fact, Wardley admitted he was not

concerned about Shelter's failure to provide such documentation. Accepting

Wardley's testimony on this point as true, it is clear Castle was well aware of

Shelter's failure to provide documents but did nothing because it was not

concerned about the situation. Such conduct unequivocally evinces an intent to

waive this contractual benefit and justified Shelter's reliance on this waiver in

failing to produce the documentation required. Thus, Wardley and Castle are

estopped from asserting an affirmative defense of excused performance. Having

resolved Castle and Wardley's arguments regarding material breach and fraud, we

now turn to Wardley's claim that the district court erred in holding him

personally liable for Castle's entire share of the joint venture's losses.

Liability

At the time Castle submitted its articles of organization, the relevant law

concerning limited liability companies provided in pertinent part:

A limited liability company may not transact business or incur

indebtedness, except that which is incidental to its organization or to

obtaining subscriptions for or payment of contributions, until the

articles of organization have been filed with the division. Persons

engaged in prefiling activities other than those authorized by this

section shall be jointly and severally liable for any debts or liabilities

incurred in the course of those activities. . . .

Utah Code Ann. § 48-2b-118(3) (1994).
name="txt5a">(5)

We have found no Utah law addressing the parameters of an organizer's

personal liability arising from prohibited pre-organization activities under this

statute. There is, however, precedent with regard to a corporate promoter's

liability for prohibited pre-incorporation transactions. It is a matter of first

impression whether this precedent is applicable to claims under Utah's Limited

Liability Company Act. We conclude that, under the circumstances before us,

such precedent is relevant.

A limited liability company (LLC) is a hybrid of two basic business

entities. It "combines the organizational flexibility and pass-through tax

treatment of a partnership with the limited liability protection of a corporation."

1A William Meade Fletcher et al., Fletcher Cyclopedia of the Law of Private

Corporations § 70.50 (perm. ed. 2002). Courts interpreting LLC statutes or

agreements will generally focus on the particular aspect of the LLC giving rise to

the problem, and then take guidance from the principles and precedent of the

business entity (corporation or partnership) most analogous to the problem before

it. See David M. Hastings, Annotation, Construction and Application of

Limited

Liability Company Acts, 79 A.L.R. 5th 689, 703-04 (2000) (and cases cited

therein).

For example, in Ditty v. CheckRite, Ltd., Inc., 973 F. Supp. 1320, 1335 (D.

Utah 1997), the district court determined that the members of an LLC are

protected from liability in much the same way as corporate shareholders. It

therefore applied Utah corporate law in deciding whether the concept of

"piercing the corporate veil" would apply to a limited liability company.
name="txt6a">(6) Id.

Accordingly, if it is necessary to go outside the plain language of Utah

Code Ann. § 48-2b-118(3) to determine the existence and extent of Wardley's

personal liability, we will be guided by Utah's corporate law. Clearly, the statute

places joint and several liability on anyone who engages in prohibited pre-filing

transactions. However, as a general rule, promoters will not be held personally

liable "if it is understood that the other party shall look to the corporation only,

provided the contract is one adoptable by the corporation." Fletcher Cyc Corp §

215 (and cases cited therein). Wardley argues the Agreement, if interpreted to

reflect the intention of the parties, demonstrates the parties chose to form the

joint venture with an LLC. In his view, because an LLC by its nature protects

managers from exposure to personal liability, and Shelter did not request a

personal guarantee from him, the Agreement raises an issue of fact as to his

personal liability. In essence, Wardley is arguing Shelter's knowledge and

conduct estops it from looking outside the LLC for payment on the corporate

debt --essentially, an "LLC by estoppel" argument.
name="txt7a">(7)

Applying Utah corporate law, Wardley's argument fails. The Agreement's

identification of an LLC as the contracting party does not eliminate individual

liability. American Vending Services, Inc. v. Morse, 881 P.2d 917, 927 (Utah

Ct. App. 1994).

In American Vending, sellers negotiated with two individuals for the sale

of a car wash to a corporation. Id. at 918. At the time of the purchase, the

sellers knew the corporate entity, American Vending Services, Inc., would

purchase and operate the car wash. Id. However, when the parties executed the

contract for sale, American Vending's attempts to file its articles of incorporation

had not been successful. Id. The articles were finally filed approximately five

weeks later. Id. The corporation operated the business for approximately three

years but did not thrive, and in fact, eventually allowed the bank to foreclose on

it. Id. at 918-19. During that time, the corporation failed to make payments to

the sellers. Id. at 919. As a result, the sellers sued both the corporation and the

individuals. Id. at 918. The individuals countered they were not personally

liable because the sellers knew the corporation was to be the business' purchaser

and operator, a good faith attempt to incorporate was made prior to the sale, and

incorporation was completed shortly after signing the purchase contract. Id. at

919.

The Utah Court of Appeals considered their defense under both the concept

of a "de facto" corporation and corporation by estoppel. It held that both

concepts were abrogated by the passage of Utah Code Ann. § 16-10-51 (1989).

With regard to the concept of corporation by estoppel, the court noted:

The so-called estoppel that arises to deny corporate capacity does not

depend on the presence of the technical elements of equitable

estoppel, viz., misrepresentations and change of position in reliance

thereon, but on the nature of the relations contemplated, that one

who has recognized the organization as a corporation in business

dealings should not be allowed to quibble or raise immaterial issues

on matters which do not concern him in the slightest degree or affect

his substantial rights.

Id. at 923. Although the court recognized the equitable nature of an estoppel

claim, the majority concluded the statute's designation of corporate existence as

the time the certificate of incorporation is issued, coupled with the unambiguous

wording of the statute, compelled them to find the legislature abrogated

corporation by estoppel. Id. at 927 (Garff, J., concurring). Accordingly, the

individuals were held jointly and severally liable "for all the debts and liabilities

that they incurred or that arose as a result of their actions before the corporation

legally existed." Id. at 923.

Similar to the Utah Business Corporations Act in American Vending, the

Utah Limited Liability Company Act at the time of the Agreement clearly defined

the moment of a limited liability company's existence. See n.5. "Upon the

placement of a stamp or seal, as provided in Subsection 48-2b-117(1)(a), on the

articles of organization, the limited liability company shall be considered

organized." Utah Code Ann. § 48-2b-118(1) (1994).
name="txt8a">(8) The provision regarding

the liability of the individual acting before the limited liability company's

existence is just as clear. "Persons engaged in prefiling activities other than

those authorized by this section shall be jointly and severally liable for any debts

or liabilities incurred in the course of those activities." Utah Code Ann. § 48-2b-118(3)

(1994). Thus, applying the reasoning of the Utah court in American

Vending, "incorporation by estoppel" was abrogated by the passage of the Utah

Limited Liability Company Act and is unavailable to promoters of an LLC

wishing to avoid personal liability for prohibited pre-filing transactions.

Therefore, the district court did not err in holding Wardley personally liable

under the Agreement for the consequences of his pre-organization contract.

But that does not end the debate. A good portion of oral argument in this

case questioned the extent of Wardley's liability for Castle's share of the

venture's losses. The district court applied the holding of American Vending,

resulting in Wardley's personal liability for Castle's entire share of the venture's

losses, with debts and obligations incurring from October 31, 1994, through

April 20, 1997. Wardley argues he should be held personally liable only for

Castle's share of the loss incurred between October 31, 1994, and the date Castle

was legally formed, December 22, 1994.

In support of this argument, Wardley acknowledges the extent of the

personal liability attributable to the individuals in American Vending was

unaffected by the date the articles of incorporation were actually filed, but

contends the Utah courts have never issued a similar ruling involving LLC's.

Instead, he points to Steenblik v. Lichfield, 906 P.2d 872 (Utah 1995), and

Murphy v. Crosland, 915 P.2d 491 (Utah 1996). In both cases, individuals were

held personally liable for debts incurred on behalf of the corporation while the

corporation was suspended.(9)

Murphy, 915 P.2d at 494; Steenblik, 906 P.2d at

878. Although in neither case did the corporation achieve reinstatement, Wardley

nonetheless maintains the courts' holdings imply personal liability would have

been limited to the date the corporation reinstated its status with the State.

We reach a different conclusion. The holding in Steenblik states:

As to corporations that have been

suspended and not reinstated, we

hold that officers and directors who continue the business of a

suspended corporation are personally liable for all debts and

liabilities arising from those operations that are a continuation of the

types of activities the corporation performed. Under such

circumstances, the relationship of persons who continue the

operations of a suspended corporation is like the relationship of

preincorporation promoters, which is essentially that of partners.

Thus, persons who act as if pursuant to valid corporate authority,

after that authority has been suspended, are personally responsible

for liabilities arising from the continued operations.

906 P.2d at 878. In reaching its decision, the court discussed whether

reinstatement would limit the individuals' liability. Id. at 877-78. It endorsed

the majority view, declining to "automatically eliminate personal liability upon

reinstatement." Id. at 878. Because Wardley signed the Agreement prior to

incorporation agreeing to receive half the profit or pay half the losses, Murphy

and Steenblik do not assist Wardley.

Wardley cites no Utah case law which limits a promoter's liability on a

contract merely by completing incorporation. While a different result may be

obtained in other jurisdictions, such precedent would be squarely in conflict with

American Vending. Neither has Wardley submitted any evidence of a novation,

i.e., Shelter agreed to release him of personal liability after the contract was

adopted by Castle. Fletcher Cyc Corp § 216 (2002) ("The consent of all parties,

being essential to a novation in any case, is essential to a novation under which

promoters seek to be relieved from personal liability on their contracts."). We

find American Vending controlling in this instance and affirm the district court's

conclusion that Wardley must be held jointly and severally liable with Castle for

Castle's entire share of the losses.

As a final argument, Wardley and Castle contend the amount of their

liability should be reduced by the value of their capital contribution. This issue

is not contained in the opening brief. It is only when we read Wardley and

Castle's reply brief that we become apprised of their contention that their liability

should be reduced by the value of their goodwill contribution.

An issue not raised in the opening brief is waived. State Farm,

31 F.3d at

984 n.7. To "review issues raised for the first time in a reply brief . . . robs the

appellee of the opportunity to demonstrate that the record does not support an

appellant's factual assertions . . . ." Stump v. Gates, 211 F.3d 527, 533 (10th Cir.

2000). Consequently, in the interests of principle and fairness, we decline to

consider this argument.

The district court's judgment in favor of Shelter is AFFIRMED.

Entered by the Court:

Terrence L. O'Brien

United States Circuit Judge

No. 02-4037, Shelter Mortgage Corporation v. Castle Mortgage Company, L.C.

LUCERO, Circuit Judge, concurring in part and dissenting in part.

Because I agree with the majority decision affirming the district court's

grant of partial summary judgment to Shelter on its breach of contract claim, I

join that aspect of the majority opinion.(1)

However, I disagree with the

conclusion that limiting Wardley's personal liability to debts and liabilities

incurred in the course of prohibited prefiling activities "would be squarely in

conflict" with Utah's Business Corporation Act ("BCA") precedent. Slip op. at

21. It is this disagreement that presents the basis of this dissent.

The majority acknowledges that it "found no Utah law addressing the

parameters of an organizer's personal liability arising from prohibited pre-organization activities"

under Utah Code Ann. § 48-2b-118(3) (1994). Id. at 14.

Presented with this "matter of first impression," id. - whether BCA precedent is

applicable to claims under Utah's Limited Liability Company Act ("LLCA") - the

majority proceeds to interpret the LLCA to impose personal liability on Wardley

for Castle's debts and liabilities incurred after the prefiling period. Yet, the BCA

has no analogous provision to the relevant LLCA provision in this case, and

accordingly, the LLCA's plain language, not BCA precedent, should control our

decision.

American Vending Servs., Inc. v. Morse, 881 P.2d 917 (Utah Ct. App.

1994), decided by the Utah Court of Appeals, forms the predicate of the majority

opinion. The American Vending court held that "section 16-10-139 [of the BCA]

imposes joint and several liability" on corporate promoters for the full extent of

the corporation's debts and liabilities arising from prohibited pre-incorporation

activities without regard to subsequent incorporation. Section 16-10-139, which

has since been repealed, stated: "All persons who assume to act as a corporation

without authority so to do shall be jointly and severally liable for all debts and

liabilities incurred or arising as a result thereof." This statutory provision does

not distinguish between prohibited prefiling activities and general

misrepresentation of corporate existence. Utah Supreme Court precedent

confirms this reading. See Steenblik v. Lichfield, 906 P.2d 872, 878 (Utah

1995)

("nothing in Utah's statutory history suggests that § 16-10-139 is limited to

preincorporation activities."). Because the Utah state legislature has not

distinguished actions taken during the prefiling period from other forms of

misrepresentation, Utah courts impose the same personal liability under both

circumstances.

By contrast, the LLCA, which provided the relevant law at the time Castle

and Shelter entered into the joint venture agreement, explicitly distinguishes

between persons engaged in prohibited prefiling activities and persons generally

acting as an LLC in contravention of the statute. One provision of the LLCA is

substantially similar to § 16-10-139 of the BCA, the statute interpreted by

American Vending. That provision of the LLCA states: "All persons who assume

to act as a limited liability company without authority granted by the division to

do so are jointly and severally liable for all debts and liabilities so incurred." §

48-2b-110.

However, § 48-2b-110 is not the statutory provision governing our

determination in this matter. Rather, the state legislature has distinguished

prohibited prefiling activities from other activities when it provides that,

"[p]ersons engaged in prefiling activities other than those authorized by this

section shall be jointly and severally liable for any debts or liabilities incurred in

the course of those activities." § 48-2b-118(3) (emphasis added). By its terms,

this provision limits personal liability to debts and liabilities incurred while

engaging in prohibited prefiling activities. Section 48-2b-118(3) finds no

compatriot in the BCA, and therefore neither American Vending, nor any other

BCA precedent, controls our interpretation of § 48-2b-118(3). While the

legislature explicitly distinguished between prefiling activities and general

misrepresentation in the LLCA, it chose not to differentiate the extent of personal

liability for misrepresenting corporate existence in the BCA.

While the LLCA contains a separate provision pertaining to prefiling

activities, Utah's BCA does not contain a counterpart affecting such prefiling

activities. Under the LLCA, a promoter is personally liable for debts or

liabilities incurred "in the course of" prefiling activities. By contrast, the BCA

extends a corporate promoter's liability both to debts and liabilities incurred in

prohibited pre-incorporation activities, as well as debts and liabilities "arising as

a result" of those activities. Given that the LLCA explicitly distinguishes

between persons acting as an LLC in contravention of that Act and those engaged

in prohibited prefiling activities, and that Utah's BCA does not make a similar

distinction, only one conclusion flows logically: the LLCA and the BCA are

sufficiently dissimilar on this point such that precedent regarding the latter

cannot compel a result under the former.

We turn then to the statutory language of the LLCA, which provides us

with our only guide in construing § 48-2b-118(3). This section limits personal

liability to liability "for any debts or liabilities incurred in the course of those

activities." § 48-2b-118(3). "Those" refers to "prefiling activities other than

those authorized by this section. . . ." Id. By its plain meaning, § 48-2b-118(3)

limits a promoter's personal liability to liabilities incurred during the period of

time the individual engaged in prohibited prefiling activities.

Pursuant to Utah's principles of statutory interpretation, we look first to

the plain language of the statute. See Evans v. State, 963 P.2d 177, 184 (Utah

1998). We "assume that each term . . . was used advisedly; thus the statutory

words are read literally, unless such a reading is unreasonably confused or

inoperable." Johnson v. Redevelopment Agency, 913 P.2d 723, 727 (Utah 1995)

(internal citations omitted). "Course," in turn, has a plain meaning. It clearly

means the length of time over which a process extends - duration.

Because the "course" of prefiling activities extends to that period of time

preceding the filing of articles of organization, I would hold that Wardley is

jointly and severally liable for all of Castle's debts and liabilities incurred prior

to December 22, 1994, the date Castle's articles of organization were filed. I

cannot agree, as the majority proposes to hold, that Wardley is liable for Castle's

debts and liabilities incurred after Castle filed its articles of organization.

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent except under the doctrines of

law of the case, res judicata and collateral estoppel. The court generally disfavors

the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

1. This figure represents: $247,870.00 as the

principal sum, reflecting fifty percent

of the venture's loss; $87,888.86 in pre-judgment interest; and $26,594.00 in attorneys'

fees.

2. During the course of the proceedings in

the district court, and continuing

throughout this appeal, there has been much debate about when the Agreement was

actually signed. We address the ramifications of this debate later in our discussion.

3. Shelter's amended complaint, filed March

16, 1999, alleged "[a]lthough Wardley

executed the Agreement on behalf of Castle on October 31, 1994, Castle did not file its

articles of organization with the Utah Division of Corporations and Commercial Code

until December 22, 1994." (Appellants' App. at 23.) Castle and Wardley admitted this

allegation in their amended answer to Shelter's amended complaint. (Id. at 82.)

4. The district court's rulings were based on

Castle and Wardley's "lurid tale of

neglect" and the resulting prejudice to Shelter if the district court granted the relief

requested. (Appellant's App. at 280-89.) In addition, the court found ample evidence to

support its initial finding that Wardley signed the Agreement in October 1994 and

transacted business prior to filing Castle's articles of organization in December. (Id.)

In

his opening brief, Wardley did not challenge the district court's factual ruling or offer

legal argument. Instead, he merely announced in his statement of facts that he did not

sign the Agreement until December 22, 1994. Failure to raise an issue in the opening

brief waives that issue. State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984

n.7 (10th

Cir. 1994). Thus, any issue regarding the date Wardley signed the Agreement is waived

and this question of fact resolved.

5. The Utah Limited Liability Company Act,

formerly found under the Partnerships

section of the Utah Code, was recodified, effective July 1, 2001, as the Utah Revised

Limited Liability Company Act, which now appears in Title 48, Chapter 2c. The

prohibition on prefiling activities is now found in Utah Code Ann. § 48-2c-404; the

resulting joint and several liability is now found in Utah Code Ann. § 48-2c-602(1) ("All

persons who assume to act as a company without complying with this chapter are jointly

and severally liable for all debts and liabilities so incurred, except for debts incurred in

the course of prefiling activities authorized under Section 48-2c-404."), and §

48-2c-602(4) ("Persons engaged in prefiling activities other than those authorized by Section

48-2c-404 shall be jointly and severally liable for any debts or liabilities incurred in the

course of those activities.").

6. "Deference is to be accorded the views of

a resident federal district judge with

respect to the interpretation and application of the law of his state absent controlling

precedents held by the highest court of that state." Loveridge v. Dreagoux, 678 F.2d

870,

877 (10th Cir. 1982).

7. Common law recognized three types of

corporations: de jure, de facto or by

estoppel. American Vending, 881 P.2d at 920. Generally, a de jure corporation is

one

created in compliance with all the requirements of the governmental entity. Id. A de

facto corporation is created when a bona fide attempt to incorporate has been made, but

the efforts are not in complete compliance with the requisite governmental standards.

Id.

Corporations by estoppel are created when the parties, by their "agreements or conduct,"

estop themselves from denying the existence of the corporation. Id.

8. The Revised Act now states the time of

formation is "the time, day, month, and

year indicated by the division's stamp or seal on the articles of organization." Utah Code

Ann. § 48-2c-402(3) (2001).

9. "Suspension is a temporary restriction on

the corporation's authority and

functions that renders the corporation powerless or unable to continue its normal

operations." Steenblik, 906 P.2d at 877 (footnote omitted).

1. The contract at issue is a partnership

agreement subject to partnership accounting

principles, under which earnings, debts, and liabilities are stated as of the time they are

earned or incurred.

---