Opinion
Case No. 116,960
05-10-2019
The MATTINGLY LAW FIRM, P.C., Plaintiff/Appellee, v. Melvin D. HENSON, Jr., a/k/a Dee Henson, Defendant/Appellant.
Erika Mattingly, MATTINGLY & ROSELIUS, P.L.L.C., Seminole, Oklahoma, for Plaintiff/Appellee, Dan Little, LITTLE LAW FIRM, P.L.L.C., Madill, Oklahoma, for Defendant/Appellant.
Erika Mattingly, MATTINGLY & ROSELIUS, P.L.L.C., Seminole, Oklahoma, for Plaintiff/Appellee,
Dan Little, LITTLE LAW FIRM, P.L.L.C., Madill, Oklahoma, for Defendant/Appellant.
Opinion by Kenneth L. Buettner, Judge:
¶1 Plaintiff/Appellee Mattingly & Roselius, P.L.L.C. (formerly known as Mattingly Law Firm) (the Firm) obtained a default judgment against Defendant/Appellant Melvin "Dee" Henson (Henson) in an action to collect unpaid attorneys' fees. After nearly three years of non-payment on the judgment, the Firm requested a hearing on Henson's assets. The Firm then sought a charging order assigning Henson's alleged interests in two limited liability companies (LLCs). The trial court granted the charging order, holding that the LLCs were "alter egos" of Henson and that the court should "pierce the corporate veil" of the entities. Henson appeals. We affirm.
¶2 The Firm filed suit against Henson March 20, 2014, alleging Henson had committed fraud in avoiding paying legal fees due for work performed by the Firm. After the Firm filed suit, the parties initially agreed upon a payment plan, but Henson soon stopped making payments. The Firm moved for default judgment September 12, 2014. Henson failed to appear at the hearing and the trial court granted default judgment in the Firm's favor October 8, 2014.
¶3 On April 25, 2017, after over two years of no payment on the judgment, the Firm filed an application for order to appear for hearing on assets. The first hearing was held May 16, 2017. The parties appeared before the trial court several times thereafter, though Henson continued to fail to present evidence of assets. At the December 5, 2017 hearing, the trial court ordered Henson to provide "corporate books of any and all LLC[s] [Henson] is associated with, including all records from Henson Farms, LLC and Henson Insurance Group, LLC. Henson to also provide all bank statements in which he has signing privileges."
¶4 At the December 27, 2018 hearing, Henson presented the operating agreement for Henson Insurance Group, LLC, bank statements from two bank accounts for the Insurance Group, and statements from one bank account for Henson Farms, LLC. Henson testified that although he worked "at the LLCs," he never drew a paycheck from either LLC. Henson further admitted that he sometimes used funds from the LLC bank accounts for personal purposes, such as buying groceries. Upon further questioning, Henson admitted that he and his wife essentially "lived out" of the LLC accounts. At the end of the hearing, the court issued a list of items Henson was to bring to the next hearing, including documentation of realty owned by the Insurance Group, a list of clients of the Insurance Group, and records of payment transactions by both LLCs.
¶5 The Firm filed a motion for charging order January 30, 2018, seeking to assign Henson's potential interest in the LLCs to the Firm for satisfaction of the judgment. Following the Firm's motion, on February 2, 2018, Henson was removed from having signing privileges for the bank accounts for both LLCs as a result of a "special meeting" of the LLCs' sole member—Henson's wife. The parties appeared before the trial court February 6, 2018, at which time the court continued the matter and ordered that Henson present the previously requested documentation.
¶6 A hearing on the motion for charging order was held February 20, 2018, and continued on March 9, 2018. During the hearing, Erika Mattingly (Mattingly), counsel for the Firm, testified to her review of Henson's financial records. Mattingly testified that, according to the LLC bank account records provided, 53% of the account transactions were cash withdrawals, 99% of which were withdrawn by Henson (approximately $52,000 in cash withdrawals). Mattingly further testified that the accounts did not reflect any paychecks deposited or paid. The court also heard testimony from Henson and Henson's wife, who both maintained that Henson had never owned an interest in the LLCs and that the LLC bank accounts were not personal in nature.
After the first day of the hearing, on February 21, 2018, Henson Farms LLC (which had been previously inactive) was reinstated with the Secretary of State. Henson Insurance Group LLC was similarly reinstated March 5, 2018.
¶7 Following the hearing, both parties submitted proposed journal entries of judgment. The trial court ruled in favor of the Firm and granted the charging order March 26, 2018. The court held that the LLCs were "alter egos" of Henson and that the court should pierce the corporate veil of the entities because (1) the LLCs were undercapitalized; (2) Henson failed to maintain books for the LLCs separate from his personal finances; (3) finances of the LLCs were not kept separate from Henson's finances and Henson had used LLC funds to pay personal obligations; and (4) Henson failed to maintain LLC formalities. Henson appeals.
¶8 The single issue on appeal is whether the trial court properly granted the charging order by determining the LLCs were Henson's "alter egos" and the court should pierce the corporate veil of the entities. In making this determination, we consider whether the trial court correctly applied 18 O.S. Supp. 2017 § 2034, which enumerates the circumstances in which a court may assign a debtor's capital interest in an LLC to a creditor. Southlake Equip. Co. v. Henson Gravel & Sand, LLC , 2013 OK CIV APP 87, ¶ 5, 313 P.3d 289. "A legal question involving statutory interpretation is subject to de novo review ... i.e., a non-deferential, plenary and independent review of the trial court's ruling." Id. (citing Duncan v. Okla. Dep't of Corrs ., 2004 OK 58, ¶ 3, 95 P.3d 1076 (quoting Fulsom v. Fulsom , 2003 OK 96, ¶ 2, 81 P.3d 652 )). We also consider whether the trial court properly applied the equitable doctrine of piercing the corporate veil. We will not reverse an equitable ruling of a trial court unless the judgment is clearly against the weight of the evidence. Puckett v. Cornelson , 1995 OK CIV APP 72, ¶ 7, 897 P.2d 1154 (citing Marshall v. Marshall, 1961 OK 86, ¶ 19, 364 P.2d 891 ).
¶9 "Under Oklahoma's limited liability company statutes, the exclusive remedy of a creditor of a member in a limited liability company with respect to the member's interest is a ‘charging order,’ which may not be foreclosed upon." Scottsdale Ins. Co. v. Tolliver , No. 04-CV-0227-CVE-FHM, 2012 WL 524421, at *3 (N.D. Okla. Jan. 11, 2012) (citing 18 O.S. Supp. 2017 § 2034 ). At trial, the Firm argued that it should be permitted to attach the LLCs' assets in satisfaction of the judgment against Henson based upon the doctrine of "piercing the corporate veil." The trial court agreed and held that the court should be able to pierce the corporate veil of the LLCs and granted a charging order upon Henson's "50% interest" in the entities.
¶10 The doctrine the Firm attempts to employ in this case is not a traditional piercing of the corporate veil, wherein shareholders or members of a corporate entity are held liable for the debts or obligations of the corporate entity. Fanning v. Brown , 2004 OK 7, ¶ 16, 85 P.3d 841 (citing Frazier v. Bryan Mem'l Hosp. Auth. , 1989 OK 73, ¶ 16, 775 P.2d 281 ). Instead, the legal tool the Firm proposes here is a distinct equitable mechanism referred to as "reverse piercing," wherein a business entity—such as an LLC or corporation—is held responsible for the liabilities of an individual member or shareholder (i.e., the opposite of traditional piercing). U.S. v. Badger , 818 F.3d 563 (10th Cir. 2016). Reverse piercing has never been explicitly recognized in Oklahoma. Lind v. Barnes Tag Agency, Inc. , 2018 OK 35, ¶ 22, 418 P.3d 698.
¶11 Additionally, the Oklahoma Supreme Court has never applied any form of veil piercing to LLCs. While the doctrine of traditional piercing the veil of corporations is well established in Oklahoma, see, e.g., Fanning , 2004 OK 7, ¶ 16, 85 P.3d 841 (citing Mid-Continent Life Ins. Co. v. Goforth , 1943 OK 244, ¶ 10, 193 Okla. 314, 143 P.2d 154 ), Oklahoma has yet to apply this doctrine to the newer entity structure of LLCs.
See David L. Cohen, Theories of the Corporation and the Limited Liability Company: How Should Courts and Legislatures Articulate Rules for Piercing the Veil, Fiduciary Responsibility and Securities Regulation for the Limited Liability Company? , 51 Okla. L. Rev. 427, 454 (1998) (explaining the uncertainty in predicting how courts will apply common law doctrines of corporate law—including piercing the corporate veil—to LLCs).
¶12 Henson strenuously argues that he was not a member of either of the LLCs, but was, ostensibly, a manager of the businesses. Under Oklahoma law, charging orders are normally granted regarding a member's interest in an LLC. 18 O.S. Supp. 2017 § 2034. Non-member managers of LLCs are not traditionally deemed to have a "membership interest" against which a charging order may be granted. Id. Oklahoma has also not yet recognized piercing the corporate veil against an individual who holds no formal financial interest in the business entity.
¶13 The trial court order combined the equitable doctrine of piercing the corporate veil with the statutory mechanism of an LLC charging order. The traditional piercing the veil analysis is an equitable tool created in common law to allow courts to ignore the corporate shield and "hold stockholders personally liable for corporate obligations or corporate conduct under the legal doctrines of fraud, alter ego and when necessary to protect the rights of third persons and accomplish justice." Fanning , 2004 OK 7, ¶ 16, 85 P.3d 841 (citing Goforth , 1943 OK 244, ¶ 10, 193 Okla. 314, 143 P.2d 154 ). Reverse piercing—also arising out of common law—was created to achieve a similar goal: to prevent shareholders and members of business entities from defrauding creditors by maintaining a sham business in which an individual could dishonestly shield his or her personal assets. In re Denton , No. 99-6059, 2000 WL 107376, at *3 n. 1 (10th Cir. Jan. 31, 2000) (citing Gregory S. Crespi, The Reverse Pierce Doctrine: Applying Appropriate Standards , 16 J. Corp. L. 33, 36 (1991) ).
¶14 Piercing and reverse piercing of the corporate veil allows an obligee to access all of the assets of the individual or entity on the other side of the veil, treating the pierced entity as synonymous with the obligor-defendant. On the other hand, a charging order allows a creditor to attach only a member's capital interest in an LLC. 18 O.S. Supp. 2017 § 2034. "Membership interest" is defined by statute as "only the flow of profits or surplus from the member's economic interest in his units of the LLC, and only allows this flow until the judgment is satisfied." Id. ; Southlake Equip. Co., 2013 OK CIV APP 87, ¶ 7, 313 P.3d 289. Thus, reverse piercing the corporate veil allows a creditor greater access to the assets of the business entity on the other side of the veil, whereas an LLC charging order allows only a narrower remedy.
¶15 Though the trial court may have been flawed in its analysis, we consider whether it was correct in its result. In so doing, we consider whether the application of reverse piercing in this case is consistent with Oklahoma law.
¶16 The reverse piercing analysis draws greatly from the traditional piercing framework. See generally, Acceptance and Application of Reverse Veil-Piercing—Third-Party Claimant (2005) 2 A.L.R.6th 195. In Oklahoma, under the traditional veil piercing analysis, courts may disregard the distinction between a business association and its stakeholders under the legal doctrines of fraud and alter ego, and where justice so requires to protect the interests of third parties. Fanning , 2004 OK 7, ¶ 16, 85 P.3d 841 (citing Goforth , 1943 OK 244, ¶ 10, 193 Okla. 314, 143 P.2d 154 ). The legal fiction that a corporation is separate and distinct from its stakeholders was created to further the interests of convenience and justice. Goforth , 1943 OK 244, ¶ 10, 193 Okla. 314, 143 P.2d 154. Where in the context of particular facts the employment of this fiction no longer supports these ends, courts may choose to disregard it and pierce the veil. Id.
¶17 The Oklahoma LLC Act provides that the "rules of law and equity" shall supplement the Act with regard to any case not addressed therein. Accordingly, we see no reason why the well recognized practice of piercing the corporate veil should not apply to LLCs. 18 O.S. Supp. 2017 § 2060. See also Estrada v. Kriz , 2015 OK CIV APP 19, ¶ 24, 345 P.3d 403 (holding that a plaintiff's veil-piercing theory against an LLC was not subject to dismissal on the basis of failure to plead fraud with specificity); Dickson Indus., Inc., v. Thomas Grinding, Inc., 2009 WL 10687735 at *1 n. 1 (W.D. Okla. Jan. 14, 2009) ("[T]here is no significant difference between the standard for piercing the veil of a corporation versus an LLC ...."). One instance where a court may choose to disregard the corporation as a separate entity is where a business association becomes the "alter ego" of one or more stakeholders, such that a court will consider the stakeholder(s) and business association to be synonymous. Fanning , 2004 OK 7, ¶ 16, 85 P.3d 841 ; see Pennmark Res. Co. v. Okla. Corp. Comm'n, 2000 OK CIV APP 63, ¶ 15, 6 P.3d 1076. The factors to be considered by Oklahoma courts in determining whether an LLC is the alter ego of a member are whether (1) the LLC is undercapitalized, (2) without separate books, (3) its finances are not kept separate from individual finances, individual obligations are paid by the LLC or vice versa or (4) the LLC is merely a sham. This list of factors is not exclusive or exhaustive and is meant merely as guidance in determining the level of control exerted by an individual over an LLC. Frazier , 1989 OK 73, ¶ 17, 775 P.2d 281. The most important element in any veil piercing analysis is control. Id.
We slightly modify the alter ego analysis applicable to corporations, found in Home-Stake Production Co. v. Talon Petroleum, C.A. , 907 F.2d 1012, 1018 (10th Cir. 1990), to fit the LLC context. Because of the nature of LLCs, members often run LLCs in a very informal manner, making the fourth element of the corporation alter ego analysis—whether corporate formalities are followed—largely inapplicable to LLCs. See M. Thomas Arnold and H. Wayne Cooper, Limited liability—Piercing the limited liability veil in Oklahoma corporations and limited liability companies , 3A Vernon's Okla. Forms 2d, Bus. Orgs. § 2.07.
See Cohen, supra note 2.
¶18 The Oklahoma Supreme Court has never explicitly employed the tool of reverse piercing. In re Denton , No. 99-6059, 2000 WL 107376, at *4 (10th Cir. Jan. 31, 2000). In its only acknowledgment of the practice, the Supreme Court stated that it "continues to stress the legal distinction between a corporation and its shareholders," at least in the Workers' Compensation context. Lind, 2018 OK 35, ¶ 22, 418 P.3d 698.
¶19 The practice of reverse piercing has been met with varied reception. Critics of reverse piercing emphasize the danger to innocent third parties, such as innocent shareholders/members, as well as creditors of the business entity. In re Denton , 2000 WL 107376 at *3 ; Floyd , 151 F.3d at 1299-1300 ; Cascade Energy & Metals Corp. , 896 F.2d at 1577. Other criticisms include the likely availability of other, legal remedies in the majority of reverse piercing cases—such as "conversion, fraudulent conveyance of assets, respondeat superior and agency law ...." Cascade , 896 F.2d at 1577.
See, e.g., In re Denton , No. 99-6059, 2000 WL 107376 at *4 (10th Cir. Jan. 31, 2000) (calling reverse piercing "potentially problematic"); Floyd v. I.R.S. U.S. , 151 F.3d 1295, 1299-1300 (10th Cir. 1998) (enumerating concerns arising from employing the reverse piercing analysis); Cascade Energy & Metals Corp. v. Banks , 896 F.2d 1557, 1577 (10th Cir. 1990) ("The reverse-pierce theory presents many problems.").
¶20 We acknowledge the above-stated concerns associated with the practice of reverse piercing. We also acknowledge, however, that these concerns may be lessened or eliminated in the presence of particular facts, such as "where a corporation is controlled by a single shareholder [and] there are ... no third-party shareholders to be unfairly prejudiced by disregarding the corporate form." Floyd , 151 F.3d at 1300.
¶21 Regarding piercing and reverse piercing the corporate veil theory as applied to non-owners, the Oklahoma Supreme Court has recognized that reverse piercing may apply even where the controlling person or entity does not have a formalized financial interest in the organization. Lind , 2018 OK 35, ¶ 22, 418 P.3d 698 ("[The doctrine of reverse piercing] applies in situations where a plaintiff seeks to hold a corporation liable for the actions of its shareholders or someone else who controls the entity.") (citing Badger , 818 F.3d at 568 ("Under reverse piercing ... a corporation or other entity can be liable for the debt of someone who controls the entity.")).
¶22 Though the veil piercing analysis most often arises in the context of controlling shareholders of a corporation, other jurisdictions have applied the concept of veil piercing to a controlling non-stakeholder—referred to as an "equitable owner." Mark J. Loewenstine, Veil Piercing to Non-Owners: A Practical and Theoretical Inquiry , 41 Seton Hall L. Rev. 839, 867 (2011) ; see also, Angelo Tomasso, Inc. v. Armor Constr. & Paving, Inc., 187 Conn. 544, 447 A.2d 406, 412 (1982) ("[S]tock ownership ... is not a prerequisite to piercing the corporate veil but is merely one factor to be considered in evaluating the entire situation"). In Illinois, an appellate court held that where a wife was the sole shareholder of the corporation, but where her non-owner husband exerted dominant control over the entity, the husband could be construed as the "equitable owner" of the company such that there was adequate "unity of interest and ownership" to allow piercing the corporate veil and hold the husband personally liable. Fontana v. TLD Builders, Inc., 362 Ill.App.3d 491, 298 Ill.Dec. 654, 840 N.E.2nd 767, 778-81 (2005).
¶23 Colorado has employed similar reasoning in a line of three cases. In the first case, LaFond v. Basham , 683 P.2d 367, 369 (Colo. App. 1984), the Colorado Court of Appeals held a non-shareholder liable for the obligations of a corporation where he was the president and general manager of the business, made unilateral decisions subject to review only by the Board of Directors (of which he was a member), and generally dominated his wife and son (the only two shareholders) as the company's main decision-maker. The Colorado Court of Appeals extended this reasoning to LLCs in Sheffield Services Co. v. Trowbridge, 211 P.3d 714, 721-22 (Colo. App. 2009), overruled on other grounds by Weinstein v. Colborne Foodbotics, LLC , 2013 CO 33, 302 P.3d 263, 269, where the court held that a non-owner manager of an LLC could be held personally liable for the LLC's obligations where he "(1) clearly dictated all policy and activity for both corporations; (2) ran the corporations, alone determined when he would draw money from them ... and (3) when the corporations were virtually insolvent, demanded payment upon his notes and took over corporate assets to the detriment of other creditors." The Colorado court reiterated this reasoning in McCallum Family L.L.C. v. Winger , 221 P.3d 69, 74 (Colo. App. 2009), where the court held that a non-shareholder employee of a corporation could be construed as an "equitable owner" for purposes of piercing the veil because he "essentially functioned as an owner." Similar to the facts in LaFond , the equitable owner in McCallum was closely related to the only two shareholders—his wife and mother—and admitted that his mother was "a shareholder and officer in name only." Id. at 77. ¶24 We find the analysis of the above-mentioned courts to be well reasoned and find that the extension of the "equitable ownership doctrine" to the piercing the veil analysis is consistent with principles of fairness and efficiency valued in Oklahoma corporate law. Applying the equitable ownership analysis here, we hold that Henson was an equitable owner of both Henson Farms LLC and Henson Insurance Group LLC. The facts here closely resemble those in Fontana, LaFond, and McCallum , where both LLCs have a sole member to whom Henson is closely related (his wife), where the record indicates Henson acts as the companies' primary decision maker for extended periods of time, and where Henson has unfettered discretion in making cash withdrawals for his own personal use.
The McCallum court noted additional jurisdictions that recognize the "equitable ownership doctrine" when piercing the corporate veil, including Minnesota and New York. Id. at 76.
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¶25 At the hearing for the charging order on March 9, 2018, both Henson and his wife testified that he alone ran both businesses for prolonged periods of time during which his wife was disabled by various health issues. Records of checks written from the LLCs bank accounts—presented at both the December 27, 2017 hearing on assets and the March 9, 2018 hearing on the motion for charging order—indicate that Henson signed a large majority of the checks and counterchecks withdrawing funds from the LLCs' bank accounts, some of which have been traced to personal uses (e.g. buying groceries and eating lunch at Pizza Hut). Henson even signed a $30,000 commercial loan agreement on behalf of Henson Insurance LLC, though in the designated capacity as "manager."
¶26 Henson and his wife assert that Henson is merely the manager of the LLCs, and that he acts only at the direction of Henson's wife, the sole member. This argument, however, is inconsistent with the operating agreement of at least one of the LLCs, Henson Insurance Group LLC. Article V of the Insurance Group's operating agreement states, "The business of the Company shall be managed by its Members." The operating agreement does not provide for a non-member manager, nor does it enumerate the powers and responsibilities of such. Like the non-owner manager in Sheffield , Henson's unchecked control of the two LLCs does not resemble that of a manager, but that of an owner.
¶27 Henson appears to use his wife's name only as a defensive shield against creditors, allowing her to be the symbolic figurehead of the companies while he carries on the majority of the business. This use of a sole "straw member" in order to shield a controlling non-owner from liability goes against the purposes intended by the creation of corporate entities. Therefore, there was substantial evidence to support the trial court's holding that Henson should be construed to be an equitable owner of both companies, where he essentially ran both businesses and initiated the large majority of financial transactions, some of which can be construed as cash distributions to himself. This conclusion is consistent with the LLC's operating agreement, which does not provide for a non-member manager, but states that the association's members shall manage it.
¶28 Having concluded that Henson is the equitable owner of the LLCs, we apply the reverse piercing analysis to the facts in this case and hold that the trial court correctly concluded that the alter ego veil piercing factors are satisfied here. Firstly, the record indicates that Henson was insolvent such that he could not pay his personal debts. At the December 12, 2017 hearing on assets, Henson stated that he does not own the pickup he uses for personal use, and that all of his properties are mortgaged. Henson testified that the two LLC bank accounts are the only two accounts on which Henson or his wife were listed or had signing privileges.
¶29 Secondly, Henson and his wife failed to maintain separate books and records for the LLCs. When asked whether Henson knew of additional business records for the two companies, Henson stated that the only business records for the LLCs were the bank statements for the checking accounts. Henson stated he was unaware of any additional evidence—such as invoices or a ledger book—indicating the cash flow and expenses for the businesses. ¶30 Thirdly, Henson commingled the LLCs funds with his own personal finances, such that the LLCs' bank accounts were used to pay his personal expenses. Henson testified multiple times that he withdrew funds from the LLCs' bank accounts for personal use. The photocopies of checks withdrawn on the accounts indicate at least a handful of instances in which the checks were written to pay for household expenses, such as groceries or eating out at a restaurant, though most of the checks were for cash withdrawals. Henson also testified that money was withdrawn from the LLCs' bank accounts in order "to send [his oldest son] to school." When asked how he and his wife are able to maintain daily life, Henson stated they "get by the best [they] can" by taking money from the LLC accounts. Henson agreed that he and his wife were "living out of the accounts."
¶31 Lastly, the evidence as a whole suggests that the LLCs are merely a sham, wherein the LLC accounts are not used for business purposes, but rather simply as a means to wrongfully shield Henson's personal assets. Despite having extensive control over both companies and using the LLCs' assets for personal use, Henson maintains that the money in LLC bank accounts is "not [his] money," and that those assets should be treated as separate from his own.
¶32 Henson cannot have it both ways. He may not enjoy the legal protections provided by the creation of distinct legal entities and also continue to use those entities' assets as his own. Oklahoma's corporate law provides protections for formalized business associations in the interests of fairness and efficiency. Where the extension of those protections no longer furthers those interests, as here, the law discontinues its protections.
¶33 Because the LLCs are Henson's alter egos and reverse piercing of the corporate veil is warranted in this case, the trial court's grant of a charging order against Henson's membership interest is superfluous. A charging order allows a judgment creditor to attach only to an LLC member's membership interest, which is personal property distinct from the LLC's assets. 18 O.S. Supp. 2017 §§ 2032, 2034. Because a reverse piercing allows a creditor to attach directly to a business association's assets, treating the business's property as the debtor's property, a charging order against the debtor's capital interest in the company is unnecessary.
¶34 We hold that Henson exerted almost exclusive control over the LLCs and the LLCs' assets, especially where his wife was the sole member of both companies. Because Henson is insolvent, failed to maintain separate books for the LLCs, used the LLCs' funds for personal uses, and generally operated the LLCs as a sham, we affirm the trial court and hold that the LLCs are Henson's alter egos and that reverse piercing of the corporate veil was consistent with the weight of the evidence. The trial court's order essentially held that 50% of the funds in certain LLC bank accounts, and any funds payable to Henson Insurance Group, LLC, were subject to garnishment by Firm to pay its judgment. Based on our analysis, the charging order is unnecessary because the assets of the LLCs are subject to collection activities allowed by law to pay Firm's judgment.
¶35 AFFIRMED.
GOREE, C.J., and JOPLIN, P.J., concur.