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Narum v. Faxx Foods Inc.3/18/1999
s, less the amount of any income received on the securities, upon tender to the seller, in person or in open court, of the securities sold or of the contracts made, or for damages if he no longer owns the securities. Damages are the amount that would be recoverable upon a tender less the value of the securities when the purchaser disposed of them and interest as provided in subsection 2 from the date of Disposition. Provided:"
"1. That no action shall be brought under this section for the recovery of the purchase price after five years from the date of such sale or contract for sale nor more than one year after the purchaser has received information as to matter or matters upon which the proposed recovery is based; and"
"2. That no purchaser shall claim or have the benefit of this section if he shall have refused or failed to accept, within thirty days from the date of such offer, an offer in writing of the seller to take back the securities in question and to refund the full amount paid by such purchaser, together with interest on such amount for the period from the date of payment by such purchaser down to the date of repayment, . . ."
"3. Nothing in this chapter shall limit any
statutory or common-law right of any person in any court for any act involved in the sale of securities."
[ ] The trial court ruled the plaintiffs' action was barred by the one-year limitation in N.D.C.C. ยง 10-04-17(1). The court reasoned the February 16, 1994 letter to investors from Faxx's attorney notifying them the second offer to rescind was withdrawn, the company was considering bankruptcy , and the investors should consult their own attorneys to protect their legal rights was "a pretty clear indication that the jig s up. The Plaintiffs were on notice that it was time to do something to protect themselves." The plaintiffs concede they had knowledge by February 1994 that would lead them to believe Faxx had violated the securities laws and more than one year passed before they commenced this action in August 1995. They assert, however, the one-year time bar in subsection 1 is inapplicable whenever the seller makes an offer under subsection 2 to take back the securities and refund the purchase price.
[ ] This issue involves the interpretation of a statute, a question of law fully reviewable by this Court. Goodleft v. Gullickson, 556 N.W.2d 303, 306 (N.D. 1996). The primary objective of statutory construction is to ascertain the intent of the Legislature. Jones v. Pringle & Herigstad, P.C., 546 N.W.2d 837, 840 (N.D. 1996). We look first in ascertaining legislative intent at the words used in the statute, giving the words their ordinary, plain language meaning. Shiek v. North Dakota Workers Compensation Bureau, 1998 ND 139, 16, 582 N.W.2d 639. Statutes must be construed as a whole to determine the legislative intent and the intent must be derived from the whole statute. State v. Johnson, 1997 ND 235, 8, 571 N.W.2d 372. We interpret statutes to avoid absurd or ludicrous results. Ohnstad Twichell, P.C. v. Treitline, 1998 ND 10, 20, 574 N.W.2d 194.
[ ] The plaintiffs argue both the one-year limitation under subsection 1 and the 30-day limitation under subsection 2 do not apply to the same voidable sale, but are mutually exclusive limitations. Under the plaintiffs' construction of the statute, either the seller does nothing and the purchaser becomes barred by failing to bring an action in one year, or the seller offers to rescind and refund the purchase price and the purchaser becomes barred from a remedy unless the purchaser accepts the offer in 30 days. Here, the plaintiffs contend Faxx elected to offer rescission under subsection 2, and bec
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