Nebraska

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

Farris Engineering, Inc. v.
Folgers Architects & Facility Design, Inc.,
No. A-99-1384 (Neb.App. 01/16/2001)

In The Court Of Appeals Of The State Of Nebraska

Nos. A-99-1384, A-99-1385.

2001.NE.0000021

January 16, 2001

FARRIS ENGINEERING, INC, APPELLEE AND CROSS-APPELLANT,

v.

FOLGERS ARCHITECTS & FACILITY DESIGN, INC., APPELLEE, FOLGERS ARCHITECTS LIMITED, APPELLANT AND CROSS-APPELLEE, AND KENNETH N. FOLGERS, APPELLEE AND CROSS-APPELLEE.

Gregory C. Scaglione and Thomas F. Ackley, of Koley Jessen, P.C., for appellant Folgers Architects Limited and appellee Kenneth N. Folgers. Victor J. Lich, Jr., and Jerry P. Herold, for appellee Farris Engineering, Inc.

Irwin, Chief Judge, and Inbody and Carlson, Judges.

The opinion of the court was delivered by: Carlson, Judge.

 (not designated for permanent publication)

Appeal from the District Court for Douglas County: Gerald E. Moran, Judge. Reversed and remanded for further proceedings.

INTRODUCTION

This appeal involves orders of summary judgment in two cases involving Farris Engineering, Inc. (Farris); Folgers Architects & Facility Design, Inc. (FAFD); Folgers Architects Limited (FAL); and Kenneth N. Folgers. These cases have been consolidated on appeal. For the reasons set forth below, we reverse, and remand for further proceedings.

BACKGROUND

The record shows that between April 1996 and April 1997, Farris, a Nebraska corporation, performed engineering services for FAFD. After executing and delivering to Farris a promissory note in the sum of $86,591 for its services, FAFD failed to pay Farris that amount.

In the mid-1970's, Folgers formed his own engineering firm, and subsequently, Folgers merged his firm with another engineering company to form FAFD. At its height, FAFD had seven shareholders and was a Delaware corporation with certificates of authority to transact business in Florida, Illinois, and Nebraska, with offices located in Miami, Chicago, and Omaha.

In 1996, FAFD began to experience substantial financial difficulties. FAFD's business slowed down, and FAFD was troubled with major problems collecting its bills. At that time, FAFD's three largest creditors were LaSalle Bank; Kaiser Development, FAFD's landlord; and the Internal Revenue Service.

As time went on, FAFD closed its Miami and Omaha offices, and FAFD's shareholders began to resign, until only Folgers and Nathaniel Pappalardo remained. At that time, Folgers was president of FAFD, owning 85 percent of its stock, and Pappalardo was FAFD's vice president, owning the remaining 15 percent of FAFD's stock. As it became clear that FAFD was unable to continue its business and pay off its creditors, LaSalle Bank recommended that FAFD seek assistance from a consulting firm called D.C.A. Group, Ltd., which formulated a plan for the appraisal, auction, assignment, and sale of FAFD's assets. LaSalle Bank suggested an assignment for the benefit of creditors and JLK Assignments, Ltd. (JLK), as the assignee.

On August 11, 1997, an agreement was executed whereby FAFD assigned its assets to JLK, and FAFD dissolved. On August 15, 1997, an appraisal of FAFD's assets was completed. During this time period, Pappalardo decided to form his own engineering company and asked Folgers' permission to use FAL as the name for his new company. On October 22, 1997, Pappalardo, as the sole shareholder, director, and president of FAL executed a purchase agreement with JLK to purchase FAFD's assets. Through this agreement, FAL agreed to assume FAFD's secured creditor's debts in the amount of $255,064.74. At this point, FAFD's debts to LaSalle Bank, Kaiser Development, and the Internal Revenue Service (FAFD's secured creditors) were paid off. The payoff on these debts was accomplished not only by FAL's assumption of FAFD's debt, but also by a large infusion of cash by Folgers himself. No unsecured creditors were paid anything.

After the creation of FAL, Folgers became employed as one of FAL's project managers and held the title of vice president. FAL was incorporated in Illinois and authorized to transact business in Illinois and Nebraska.

On March 16, 1998, Farris filed a petition in equity against FAFD, FAL, and Folgers, alleging that FAFD had not paid Farris for its services. Hereinafter, this action will be referred to as Farris' "contract action." Farris further alleged that FAL was incorporated as a successor and mere continuation of FAFD to escape liability for FAFD's obligations. Farris alleged that Folgers was the person in control of both corporations and that both FAFD and FAL are the alter egos of Folgers and a mere facade for Folgers' personal dealings. Farris requested that the court disregard the corporate entities as to Folgers and prayed for payment against FAFD and FAL and each of them in the sum of $100,127.66 plus interest.

On April 28, 1998, Farris filed a motion for summary judgment against FAFD stating that there was no genuine issue as to any material fact and that Farris was entitled to judgment as a matter of law against FAFD. The district court granted Farris' motion for summary judgment in an order filed July 20. The district court entered judgment in favor of Farris and against FAFD in the amount of $105,906.52, which included the principal sum of $86,591 plus interest accrued to July 13, 1998.

On November 25, 1998, Farris filed an amended petition against FAFD and FAL, seeking a lien on FAL's property. This action will be subsequently referred to as Farris' "lien action." Farris alleged that on August 11, 1998, it caused execution to be issued on the July 20 judgment and that on August 20 said execution was returned unsatisfied.

Farris alleged that FAL has an interest in property in the form of several claims and causes of action pending in the Douglas County District Court. The record shows that these claims were originally filed by FAFD, prior to its dissolution, to recover unpaid receivables owed to FAFD from other entities. The record also shows that FAFD assigned its right to these claims to FAL.

Farris claimed that the continuation of the business of FAFD by FAL was entered into to escape liability for FAFD's obligations and that the purposed assignment to JLK and the subsequent assignment to FAL were sham transactions which operated as a fraud on the creditors of FAFD.

Farris stated that it had no adequate remedy at law for collection of its judgment against FAFD. Farris stated that it was entitled to a lien upon FAL's interest in the above-described claims and causes of action.

Also on November 25, 1998, Farris filed a petition requesting that the sheriff of Douglas County take temporary possession of any sums FAL recovered on its lawsuits in district court. Farris also alleged that the appointment of a receiver was necessary to prevent further assignments by FAL and to hold any proceeds collected.

FAFD and FAL filed an answer to the latter petition on December 14, 1998. A hearing was held on December 14. In an order filed January 12, 1999, the district court stated that Farris' interest could be protected without appointing a receiver because FAL had been granted a judgment against one of its judgment debtors, Richard Kerns, and Kerns had posted a supersedeas bond in the sum of $625,000. The court ordered that Farris was to have a prejudgment attachment lien on Kern's supersedeas bond.

On August 5, 1999, Farris filed a motion for summary judgment against Folgers and FAL, the remaining defendants on its contract action, and against FAFD and FAL on its lien action.

On September 2, 1999, the defendants filed opposing motions for summary judgment, in each of Farris' actions, stating that there was no genuine issue of material fact and that they were entitled to judgments as a matter of law.

On September 30, 1999, the trial court, upon the stipulation of the parties, consolidated Farris' actions for trial.

On September 14 and 30, a hearing was held on the parties' motions for summary judgment. At the hearing, both parties offered evidence in support of their motions for summary judgment. This evidence will be set forth in further detail later in the opinion as necessary to our resolution.

On November 9, 1999, the trial court filed separate orders in each case regarding the parties' respective motions for summary judgment. The district court stated that the de facto merger doctrine was applicable. The court stated that FAL was a mere continuation or reincarnation of FAFD; that FAFD's assignment to FAL amounted to a merger; and that FAL is, therefore, liable to Farris in its contract action. The court also stated that FAFD's assignment of its assets to JLK and their subsequent sale to FAL allowed Folgers, Pappalardo, and the corporations to relieve themselves of the claims of creditors, and any personal liability thereon, and at the same time to continue the business as usual without even a moment of interruption. Additionally, the court stated that FAFD's purported assignments were not effective to prevent Farris from enforcing its judgment lien against FAL nor were they effective to prevent Farris from enforcing its contract claim against FAL. Regarding Farris' claim that the transfer from FAFD to FAL was a fraudulent transfer, the trial court stated:

Although Plaintiff argued and briefed the application of the Nebraska Uniform Transfer Act and that the transfer from the Old Corporation to the New Corporation was a fraudulent transfer, the Court finds that Plaintiff did not plead a cause of action under the Act. The Court, having considered the evidence and heard the arguments, finds that even if Plaintiff had pled a cause of action under the Act, the Court finds that there is no genuine issue of material fact and that as a matter of law the transfer was not a fraud, sham or fraudulent transfer under the Nebraska Uniform Fraudulent Transfer Act. There was nothing fraudulent or nefarious about the transaction between the Old Corporation and the New Corporation or the acts of Kenneth Folgers. Instead, I am finding simply that the Defacto Merger Doctrine applies and the transfer as it relates to Farris Engineering was not effective to relieve the New Corporation of liability for the judgment entered against the Old Corporation.

Regarding Farris' request to have the court disregard the corporate veil of FAFD and hold Folgers personally liable for the debts, obligations, and judgments of FAFD, the trial court stated that there was no genuine issue of material fact and that as a matter of law, there was no basis to disregard FAFD's corporate veil.

The trial court then entered judgment in favor of Farris against FAL on Farris' contract claim in the sum of $124,866.59, which includes principal of $86,591 and interest through September 30, 1999, plus interest which shall accrue after September 30, 1999. The trial court also granted Farris a permanent and final judgment lien upon FAL's interest in its lawsuits in the amount of Farris' judgment of $124,866.59.

FAL appeals, and Farris cross-appeals.

ASSIGNMENTS OF ERROR

On appeal, FAL contends that the trial court erred in (1) granting Farris' motion for summary judgment on its contract action against FAL on the basis of the de facto merger doctrine and denying its motion for summary judgment and (2) granting Farris a prejudgment attachment lien on a supersedeas cash bond or deposit relating to judgments FAL obtained. In its cross-appeal, Farris argues that the trial court erred in (1) determining that Farris had not pled a cause of action under the Uniform Fraudulent Transfer Act; (2) determining that even if Farris had pled a cause of action under the Uniform Fraudulent Transfer Act, FAFD's transfer of property to FAL was not a fraudulent transfer as a matter of law; and (3) finding that fraud had not been committed by FAFD, FAL, and Folgers. Additionally, in its cross-appeal, Farris contends that the district court erred in (1) overruling its motion for summary judgment against Folgers, (2) sustaining Folger's motion for summary judgment and dismissing Farris' petition against him, and (3) finding that fraud had not been committed by Folgers.

STANDARD OF REVIEW

Although the denial of a motion for summary judgment, standing alone, is not a final, appealable order, when adverse parties have each moved for summary judgment and the trial court has sustained one of the motions, the reviewing court obtains jurisdiction over both motions and may determine the controversy which is the subject of those motions or make an order specifying the facts which appear without substantial controversy and direct such further proceedings as it deems just. State Farm Mut. Auto. Ins. Co. v. Cheeper's Rent-A-Car, 259 Neb. 1003, 614 N.W.2d 302 (2000).

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Sherrets, Smith v. MJ Optical, Inc., 259 Neb. 424, 610 N.W.2d 413 (2000).

Where reasonable minds differ as to whether an inference supporting the ultimate conclusion can be drawn, summary judgment should not be granted. Id.

In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives that party the benefit of all reasonable inferences deducible from the evidence. Id.

ANALYSIS

De Facto Merger.

On appeal, FAL contends that the trial court erred in granting Farris' motion for summary judgment on its contract action against FAL on the basis of the de facto merger doctrine and denying its motion for summary judgment.

Ordinarily, a corporation which purchases the assets of another corporation does not succeed to the liabilities of the selling corporation unless (1) the purchasing corporation expressly or impliedly agreed to assume the selling corporation's liability, (2) the transaction amounts to a consolidation or merger of the purchasing and selling corporations, (3) the purchasing corporation is merely a continuation of the selling corporation, or (4) the transaction has been entered into fraudulently to escape liability for the obligations of the selling corporation. Timmerman v. American Trencher, Inc., 220 Neb. 175, 368 N.W.2d 502 (1985).

The trial court based its decision on the third exception set out in Timmerman v. American Trencher, Inc., stating that as a matter of law, FAL was a mere continuation of FAFD.

The factors for establishing a de facto merger are that (1) there is a continuation of the enterprise of the seller corporation, so that there is a continuity of management, personnel, physical location, assets, and general business operations; (2) there is a continuity of shareholders which results from the purchasing corporation paying for the acquired assets with shares of its own stock, this stock ultimately coming to be held by the shareholders of the seller corporation so that they become a constituent part of the purchasing corporation; (3) the seller corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible; and (4) the purchasing corporation assumes those liabilities and obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the seller corporation. Hernandez v. Johnson Press Corp., 70 Ill. App. 3d 664, 388 N.E.2d 778, 26 Ill. Dec. 777 (1979).

In the instant case, the record clearly shows that in at least some respects, FAL continued the business operations of FAFD, with many of the same clients, similar work, the same address and telephone number, and the same employees. It is true, as FAL suggests, that the fact that a purchasing corporation continues the business operations of a selling corporation does not, in and of itself, establish that the purchasing corporation is a continuation of the corporate entity of the selling corporation for purposes of imposing the selling corporation's liabilities on the purchasing corporation. Timmerman v. American Trencher, Inc., supra.

A commonality of officers, directors, or stockholders is also an important consideration in determining whether a purchasing corporation is but a continuation of the corporate entity of a selling corporation. Id.

In Timmerman v. American Trencher, Inc., supra, John Timmerman brought a products liability action against American Trencher alleging he was injured by a defectively designed and unreasonably dangerous drop hammer manufactured by Bradco, a corporate entity which had sold its assets. American Trencher, which had purchased Bradco's assets and assumed certain liabilities of Bradco, moved for summary judgment. The district court granted American Trencher's motion, and Timmerman appealed. The Nebraska Supreme Court held that a substantial issue of material fact existed as to whether American Trencher was a continuation of Bradco, precluding summary judgment.

In Timmerman v. American Trencher, Inc., the Schnittjer brothers, Bradley and Roger, were, together, either the majority shareholders or virtually so from the time of Bradco's incorporation to the time of its dissolution. Additionally, Bradley was the final president of Bradco, and Roger had been the vice president at one point. Roger was Bradco's lone director at the time Bradco's assets were sold. Bradley and Roger were the sole members of the board of directors of American Trencher, and Bradley became American Trencher's president and treasurer, and Roger, its vice president and secretary. Additionally, Bradley and Roger became American Trencher's majority shareholders. The Nebraska Supreme Court stated:

Given the commonality of ownership and leadership between Bradco and American Trencher, it cannot be said the undisputed facts do not support at least an inference that American Trencher is but a continuation of the corporate entity of Bradco.

A summary judgment does not lie where the ultimate inferences to be drawn from material facts as to which there is no genuine issue are not clear. Timmerman v. American Trencher, Inc., 220 Neb. 175, 183, 368 N.W.2d 502, 507 (1985).

In contrast in the instant case, the facts support an inference that FAL is not merely a continuation of FAFD. The record shows that although FAFD and FAL share common officers, there is no commonality regarding FAFD and FAL's shareholders and directors. While both Folgers and Pappalardo were shareholders and directors at FAFD, Pappalardo is FAL's sole shareholder and director. Given these facts, we conclude that reasonable minds may differ as to whether the inference that FAL is merely a continuation of FAFD can be drawn. Thus, we conclude that the trial court erred in concluding as a matter of law that FAL was merely a continuation of FAFD, and we reverse that portion of the trial court's order granting summary judgment in favor of Farris on its contract action.

Prejudgment Attachment Lien.

On appeal, FAL contends that the trial court erred in granting Farris a prejudgment attachment lien on a supersedeas cash bond or deposit relating to judgments FAL obtained. In an order filed January 12, 1999, the trial court granted Farris a prejudgment attachment lien on a supersedeas bond posted by one of FAL's judgment debtors. In an order filed November 9, the trial court granted Farris a permanent and final judgment lien upon FAL's interest in its lawsuits in the amount of Farris' judgment of $124,866.59. Given our determination above that the trial court erred in awarding Farris judgment in the amount of $124,866.59, we are required to reverse that portion of the trial court's order granting Farris a judgment lien.

For the sake of completeness, we note that the trial court's grant of a judgment lien to Farris was also erroneous because it was based on the trial court's erroneous grant of a prejudgment lien to Farris. Specifically, the court erred in initially granting Farris a prejudgment lien given that the record fails to show that Farris complied with the requirements of Neb. Rev. Stat. § 25-1002 (Reissue 1995), which states:

An order of attachment shall be approved by a judge of any district court or county court only after there has been presented to him or her an affidavit or affidavits based upon personal knowledge (1) that the facts set forth in plaintiff's petition which state a valid cause of action and the amount plaintiff is entitled to recover are true, (2) describing the existence and approximate value of any of defendant's property known to the plaintiff to be subject to the jurisdiction of the court, and (3) stating specific facts demonstrating reasonable cause that one or more of the grounds for an attachment enumerated in section 25-1001 exist.

Neb. Rev. Stat. § 25-1001 (Reissue 1995) states:

The plaintiff, in a civil action for the recovery of money, may, at or after the commencement thereof, have an attachment against the property of the defendant when the defendant or one of several defendants (1) has absconded with the intent to defraud his or her creditors; (2) has left the county of his or her residence to avoid the service of a summons; (3) so conceals himself or herself that a summons cannot be served upon him or her; (4) is about to remove his or her property, or a part thereof, out of the county in which the property is located, with the intent to defraud his or her creditors; (5) is about to convert his or her property, or a part thereof, into money, for the purpose of placing it beyond the reach of his or her creditors; (6) has property, or rights, in action, which he or she conceals; (7) has assigned, removed or disposed of, or is about to dispose of his or her property, or a part thereof, with the intent to defraud his or her creditors; or (8) fraudulently contracted the debt or incurred the obligation for which suit is about to be or has been brought. . . .

For these reasons, we conclude that the trial court erred in granting Farris a judgment lien on FAL's property, and the trial court's judgment in that regard is reversed.

Uniform Fraudulent Transfer Act.

In its cross-appeal, Farris argues that the trial court erred in determining that Farris had not pled a cause of action under the Uniform Fraudulent Transfer Act (UFTA); determining that even if Farris had pled a cause of action under the UFTA, FAFD's transfer of property to FAL was not a fraudulent transfer as a matter of law; and finding that fraud had not been committed by FAFD, FAL, and Folgers.

In its order, the trial court stated:

 [E]ven if Plaintiff had pled a cause of action under the Act, the Court finds that there is no genuine issue of material fact and that as a matter of law the transfer was not a fraud, sham or fraudulent transfer under the Nebraska Uniform Fraudulent Transfer Act. There was nothing fraudulent or nefarious about the transaction between the Old Corporation and the New Corporation or the acts of Kenneth Folgers.

Farris argues that if the facts as pled raise the issue of a fraudulent transfer, then the UFTA is applicable to the case and it is not required that Farris invoke the operation of the UFTA by specific reference to it. Specifically, Farris states that while its petition does not specifically mention the UFTA, such mention is not required under our code pleading system, citing In re Estate of Wise, 144 Neb. 273, 13 N.W.2d 146 (1944). We agree that Farris' petition raised the issue of a fraudulent transfer under the UFTA. In its petition, Farris alleged that the continuation of the business of FAFD by FAL was entered into to escape liability for FAFD's obligations and constituted a fraud on the creditors of FAFD, including Farris. We also agree that the trial court erred in finding that even if Farris had pled a cause of action under the UFTA, FAFD's transfer of property to FAL was not a fraudulent transfer as a matter of law.

At issue is Neb. Rev. Stat. § 36-705 (Reissue 1998), which provides:

 (a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:

 (1) with actual intent to hinder, delay, or defraud any creditor of the debtor; or

 (2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:

 (i) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or

 (ii) intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due.

 (b) In determining actual intent under subdivision (a)(1) of this section, consideration may be given, among other factors, to whether:

 (1) the transfer or obligation was to an insider;

 (2) the debtor retained possession or control of the property transferred after the transfer;

 (3) the transfer or obligation was disclosed or concealed;

 (4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit;

 (5) the transfer was of substantially all the debtor's assets;

 (6) the debtor absconded;

 (7) the debtor removed or concealed assets;

 (8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;

 (9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;

 (10) the transfer occurred shortly before or shortly after a substantial debt was incurred; and

 (11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor. See, also, Eli's, Inc. v. Lemen, 256 Neb. 515, 591 N.W.2d 543 (1999).

In the instant case, a genuine issue of material fact exists as to whether FAFD transferred or assigned its assets to JLK and ultimately to FAL with the actual intent to hinder, delay, or defraud its creditors. On this record, we cannot determine as a matter of law FAFD's actual intent in transferring its assets to JLK and FAL. Similarly, a question of fact exists as to whether FAFD received a reasonably equivalent value in exchange for the transfer. Therefore, after reviewing the evidence in a light most favorable to FAL and FAFD, we conclude that the trial court erred in concluding as a matter of law that there was no fraud involved in the transactions at issue.

Piercing Corporate Veil.

Additionally, in its cross-appeal, Farris contends that the district court erred in overruling its motion for summary judgment against Folgers, in sustaining Folgers' motion for summary judgment and dismissing Farris' petition against him, and in finding that fraud had not been committed by Folgers.

When a corporation is or becomes the mere alter ego, or business conduit, of a person, it may be disregarded. Carpenter Paper Co. v. Lakin Meat Processors, 231 Neb. 93, 435 N.W.2d 179 (1989).

Some of the factors which are relevant in determining to disregard the corporate entity on the basis of fraud are (1) grossly inadequate capitalization, (2) insolvency of the debtor corporation at the time the debt is incurred, (3) diversion by the shareholder or shareholders of corporate funds or assets to their own or other improper uses, and (4) the fact that the corporation is a mere facade for the personal dealings of the shareholder and that the operations of the corporation are carried on by the shareholder in disregard of the corporate entity. Id. For purposes of piercing the corporate veil, "inadequate capitalization" means capitalization very small in relation to the business of the corporation and the risks entailed, and is measured at the time of incorporation. Wolf v. Walt, 247 Neb. 858, 530 N.W.2d 890 (1995). For purposes of determining whether a corporate veil should be pierced, a corporation would be deemed "insolvent" if it is unable to pay its debts as they become due in the usual course of its business or if it has excess of liabilities over assets at fair valuation. Id. Whether a corporation is insolvent, for purposes of piercing the corporate veil, is usually a question of fact. Id.

On this record, we cannot say as a matter of law that those factors which are relevant in determining whether to disregard a corporate entity on the basis of fraud are not present in the instant case. Therefore, we conclude that the trial court erred in sustaining Folgers' motion for summary judgment and dismissing Farris' petition against Folgers.

CONCLUSION

After reviewing the record, we conclude that the trial court erred in granting Farris' motion for summary judgment on its contract action; in granting Farris a lien on FAL's property; in determining that Farris had not pled a cause of action under the UFTA; and in determining that even if Farris had pled a cause of action under the UFTA, FAFD's transfer of property to FAL was not a fraudulent transfer as a matter of law. We also conclude that the district court erred in sustaining Folgers' motion for summary judgment and dismissing Farris' petition against Folgers. Therefore, we reverse the trial court's grants of summary judgment and remand for further proceedings.

Reversed and remanded for further proceedings.

The legal opinions are a matter of public record (that's how we got them), and as such there can be no defamation for republishing them. Sometimes, however, legal opinions are reversed, vacated, or significantly modified, etc., and we do not discover this fact until somebody points it out to us. As we do not desire to publish inaccurate or outdated information, if a legal opinion has been reversed, vacated, or significantly modified, please advise us of this fact immediately, by fax to (877) 698-0678 or you may also send regular postal correspondence to Riser Adkisson LLP at 1827 Powers Ferry Road, Building One, Suite 200, Atlanta GA 30339.