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T. Thomas Metier
T. Thomas Metier
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When Should the Corporate Veil Be Pierced to Impose Joint and Several Liability on a Managing Member of a Limited Liability Company for Attorney Fees?

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The Colorado Supreme Court reversed the Court of Appeals in the case of Stockdale v. Ellsworth, No. 16SC798, (2017 CO 109). In 2009, XTO Energy, Inc. (“XTO”), filed an interpleader action, seeking to resolve competing claims to oil and gas proceeds held by XTO.  XTO named several potential claimants as defendants in the interpleader action, including Seawatch Royalty Partners, LLC (“Seawatch”), managed by Chester J. Ellsworth (“Ellsworth”) and several potential heirs. After a bench trial, the court concluded the true heirs were entitled to the proceeds. Pertinent here, the trial court also ruled that Seawatch’s claims and defenses were frivolous; that Seawatch was an alter ego of Ellsworth; and that Seawatch and Ellsworth were jointly and severally liable for any future award of attorneys’ fees. Ellsworth was subsequently joined as a party under C.R.C.P. 21 and served via substituted service. Ellsworth contested his individual liability, arguing that the court lacked personal jurisdiction over him; that he had been improperly served; and that Seawatch was not, in fact, his alter ego. The trial court rejected these arguments and entered judgment jointly and severally against Seawatch and Ellsworth for approximately $1 million in attorneys’ fees. Ellsworth appealed pro se.

The court of appeals vacated the judgment against Ellsworth, holding that the district court lacked jurisdiction to hold him jointly and severally liable for the attorneys’ fee award because, as a nonparty, Ellsworth did not have notice and opportunity to contest his individual liability.

The Colorado Supreme Court granted writ to examine whether Ellsworth had been properly joined. The Court examined whether it was proper to pierce the corporate veil and hold Ellsworth individually liable for Seawatch’s litigation conduct. Piercing the corporate veil involves a mixed question of law and fact. A duly formed corporation is a legal entity distinct from its shareholders and this separate status normally insulates a corporation’s shareholders from personal liability for the debts of the corporation. However, in certain circumstances, a court will pierce the veil of corporate entity to expose the individuals hiding behind it. For instance, a shareholder may be individually liable for the corporation’s actions when the corporation is merely the alter ego of the shareholder, and the corporate structure is used to perpetuate a wrong. In such extraordinary circumstances, the courts may pierce the corporate veil to achieve an equitable result.

A corporation is the alter ego of its shareholder or shareholders when it is a mere instrument for the shareholders’ own affairs. To determine whether a corporation is an alter ego, a court should consider a number of factors, including whether the corporation is operated as a distinct business entity, funds and assets are commingled, adequate corporate records are maintained, the nature and form of the entity’s ownership and control facilitate misuse by an insider, the business is thinly capitalized, the corporation is used as a ‘mere shell,’ shareholders disregard legal formalities, and corporate funds or assets are used for noncorporate purposes.

If the corporation is found to be the alter ego, the court must consider whether the corporate fiction was used to perpetrate a fraud or defeat a rightful claim. Only when the corporate form was used to shield a dominant shareholder’s improprieties may the veil be pierced.

The trial court found that Ellsworth was the sole managing partner of Seawatch, which he owned with his wife and two adult children; Ellsworth’s payments to the Heirs for the mineral deeds were made from Ellsworth’s personal checking account or were cash; Seawatch did not have its own checking account, its own cash, or any loan agreements with Ellsworth; Seawatch did not own other property, had never received any income, and did not file tax returns; and Ellsworth used these alter ego entities to perpetuate a wrong.

Therefore, if liability was limited to Seawatch, it would remove any meaningful opportunity for the injured parties to recover for conduct for which Ellsworth is responsible. Because the record is devoid of any meaningful evidence that Seawatch was operated as a separate corporate entity apart from Ellsworth, and the only respect in which Ellsworth has treated Seawatch as a corporate entity, independent of him personally, is as a barrier to his personal liability, the trial court held Ellsworth liable for the actions of Seawatch is required to achieve fairness and reach a just result.

The Supreme Court determined the trial court properly pierced the corporate veil to hold Ellsworth individually liable for Seawatch’s frivolous claims and defenses. Additionally, that Ellsworth, who was properly joined to the post-judgment proceedings, had notice and opportunity to contest his individual liability. The Court reverses the court of appeals and remands with instructions to reinstate the judgment awarding attorneys’ fees and costs.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado