                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 31 2000
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    In re:

    LOLA FAYE DENTON,

                Debtor.                                  No. 99-6059
                                                   (D.C. No. CIV-98-725-C)
                                                         (W.D. Okla.)
    THELMA PATTERSON,

                Appellant,

    v.

    KENNETH L. SPEARS, Trustee,

                Appellee.


                             ORDER AND JUDGMENT           *




Before BALDOCK , PORFILIO , and BRORBY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the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.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      This appeal arises out of an adversary proceeding commenced by Appellee

Kenneth Spears, the trustee for the bankruptcy estate of debtor Lola Faye Denton,

to recover certain property for the debtor’s estate. Among others, Spears sued

Appellant Thelma Patterson, who is Denton’s mother. The matter was tried to the

bankruptcy court along with another adversary proceeding commenced by one of

Denton’s creditors. On appeal, Patterson challenges the propriety of two

bankruptcy court rulings that the district court affirmed. First, she contends the

bankruptcy court erred in ruling that an irrevocable spendthrift trust created by

Denton for her own benefit could be revoked only with the written consent of all

interested parties, so the alleged oral revocation of the trust was of no effect.

Patterson, who was the trustee of the spendthrift trust, claims that she had

contributed virtually all of the corpus of the trust and that the trust was revoked,

and the corpus distributed, long before Denton filed bankruptcy. Second,

Patterson contends the bankruptcy court erred in piercing the corporate veil of

Native Elm Mobilehome Park, Inc. (“Native Elm”) and making the corporation’s

assets part of the debtor’s estate. She claims that she owned and controlled

Native Elm and that its assets belong to her.




                                          -2-
       We review the bankruptcy court’s legal determinations de novo, and its

factual findings for clear error.   See Phillips v. White (In re White)   , 25 F.3d 931,

933 (10th Cir. 1994). Both parties agree that all the issues raised on appeal are

governed by Oklahoma law. Before we turn to these issues, we note that our

review of this appeal was hindered by Patterson’s failure to comply with

10th Cir. R. 28.2(C)(2), which requires her to refer to the specific places in the

record where each issue was raised and ruled on, and by her failure to provide us

the complete record pertaining to the rulings and issues on appeal.

       The bankruptcy court found that in 1984, Denton, as the named settlor,

created for her own benefit an irrevocable spendthrift trust. Patterson does not

challenge these findings on appeal. She argues, however, that the trust was

revoked by oral consent of all the interested parties in the early 1990s. The

bankruptcy court determined that the trust had not been revoked, because

Oklahoma’s Trust Act requires the “written consent of all living persons having

vested or contingent interest” in the trust to revoke an irrevocable spendthrift

trust that was “created by the trustor for his own benefit.” Okla. Stat. tit. 60,

§ 175.41. Patterson does not dispute that there was no written consent; she

argues only that the interested parties’ alleged oral consent was legally sufficient

to revoke the trust.




                                            -3-
       Based upon the plain language of the statute, we conclude the bankruptcy

court correctly concluded that written consent was necessary to revoke the

trust. See, e.g., Morrison v. Ardmore Indus. Dev. Corp.       , 444 P.2d 816, 820

(Okla. 1968). Patterson’s reliance on     Wade v. McKeown , 145 P.2d 951

(Okla. 1943), to support her argument that no writing is required, is misplaced.

The facts of Wade , which involved a trust created before the enactment of the

Trust Act, are quite different from the facts here, and the     Wade decision did not

address the statutory requirements for revocation. Because there was no evidence

that the interested parties agreed in writing to revoke the trust, the bankruptcy

court correctly concluded that the trust was still in effect.

       We turn, then, to the bankruptcy court’s rulings regarding Native Elm. The

bankruptcy court initially ruled that Denton had an interest in Native Elm and that

the corporation was her instrumentality. Based on this determination, the

bankruptcy court concluded it was appropriate to pierce the corporate veil and

treat the corporation’s assets as assets of Denton’s bankruptcy estate. Patterson

attacked the instrumentality finding on appeal to the district court and also argued

that Oklahoma law required an additional showing that Denton used Native Elm

to perpetrate a fraud before the court could pierce Native Elm’s corporate veil.

The district court affirmed the bankruptcy court’s instrumentality finding, but

agreed with Patterson that the instrumentality finding, alone, was not sufficient to


                                             -4-
pierce the corporate veil under Oklahoma law. Therefore, the district court

remanded the matter for the bankruptcy court to determine whether Denton also

used Native Elm as part of a design or scheme to perpetrate a fraud.

       On remand, the bankruptcy court found that Denton did use Native Elm

as part of a design or scheme to defraud her creditors. Patterson appealed this

determination to the district court and also argued that the bankruptcy court

erroneously effected what is known as a “reverse pierce” of the corporation, by

allowing the assets of Native Elm to be used to satisfy the debts of Denton.   1



Based on this court’s opinion in    Cascade Energy & Metals Corp. v. Banks     ,

896 F.2d 1557, 1576-78 (10th Cir. 1990), Patterson argued that allowing a

reverse pierce of Native Elm would prejudice the rights of an innocent third


1
       In a case involving a standard pierce, a creditor of the corporation is
attempting to pierce the veil of a corporate entity to reach the assets of the
controlling insider. By contrast, in a case involving a reverse pierce, “either
a corporate insider or a person with a claim against a corporate insider is
attempting to have the insider and the corporate entity treated as a single person
for some purpose.” Gregory S. Crespi, The Reverse Pierce Doctrine: Applying
Appropriate Standards, 16 J. Corp. L. 33, 36 (1991). An “outsider” reverse pierce
may occur when “a third party claimant . . . files an action against the corporate
insider and attempts to pierce the corporation to subject corporate assets to this
claim [or when] a third party claimant . . . attempts to assert that claim against the
corporation in an action between the corporation and the third party.”    Id. at 37.
An “insider” reverse pierce may occur when “a dominant shareholder or other
controlling insider . . . attempts to have the corporate entity disregarded to avail
the insider of corporate claims against third parties or to bring corporate assets
under the shelter of protection from third party claims that are available only for
assets owned by the insider.”    Id. In the present case, Spears is attempting to
pierce the corporate veil to use corporate assets to satisfy the personal debts of
Denton, thereby effecting an outsider reverse pierce.

                                            -5-
person, namely herself, and that the court should not apply the reverse pierce

doctrine in the absence of a clear statement by the Oklahoma Supreme Court

that the Oklahoma courts have adopted the doctrine.

       The district court addressed Patterson’s objections to the reverse pierce

doctrine on the merits, even though it does not appear that Patterson had raised

those objections in the bankruptcy court.     2
                                                  The district court noted that this court

criticized the reverse pierce doctrine in    Cascade Energy , but the court concluded

the doctrine should be applied here because there was substantial evidence that

Native Elm and Denton “were indistinct in operation, and recognition of the

corporate entity would allow Denton to avoid legal obligations and defraud her

creditors,” Appellant’s App., Vol. I, at 94 (citing      NLRB v. Greater Kan. City

Roofing , 2 F.3d 1047, 1052 (10th Cir. 1993)). The district court also rejected

Patterson’s challenges to the bankruptcy court’s determination that Denton used

Native Elm as part of a design or scheme to defraud her creditors, and affirmed

the bankruptcy court’s decision.

       On appeal, Patterson challenges the bankruptcy court’s determinations that

Native Elm was an instrumentality of Denton and that Denton used Native Elm as

part of a design or scheme to defraud her creditors. Patterson also argues that we


2
      Patterson failed to include in her appendix the briefs she filed in the
bankruptcy and district courts. Based on the bankruptcy court’s decision,
however, it does not appear that Patterson presented this argument to that court.

                                             -6-
should not uphold the bankruptcy court’s use of a reverse pierce to make Native

Elm’s assets part of the debtor’s estate. Although the record does not reflect that

Patterson challenged the use of a reverse pierce in the bankruptcy court, we will

exercise our discretion to consider the matter on appeal because it involves a

question of law, the matter is dispositive, the district court did not deem it

waived, and Spears has not suggested that we should deem the matter waived

or that the district court should have done so.    See, e.g. , Ross v. United States

Marshal , 168 F.3d 1190, 1195 n.5 (10th Cir. 1999) (exercising discretion to hear

issue not raised in trial court because it presented a matter of law, the resolution

of which was certain).

       In Cascade Energy , this court considered a claim under Utah law involving

an outsider reverse pierce,   see infra n.1. The district court had concluded that

several corporations were instrumentalities of the primary shareholder and were

used by him for personal purposes. The district court also had determined that

“[i]t would be inequitable and a fraud on the opposing parties” not to hold all the

corporate entities jointly and severally liable for any judgment against the

shareholder or any one of the corporations. 896 F.2d at 1574. On appeal, we

agreed with the district court’s factual findings that the shareholder “wielded

almost total control over the entities,” and “freely transferred cash from any entity

that had it to any entity that needed it, whenever he wanted to do so.”     Id. at 1576.


                                             -7-
Nonetheless, we recognized that a reverse pierce of the corporate veil presents

many problems that a standard pierce does not. For instance, use of a reverse

pierce “bypasses normal judgment-collection procedures, whereby judgment

creditors attach the judgment debtor’s shares in the corporation and not the

corporation’s assets. Moreover, to the extent that the corporation has other

non-culpable shareholders, they obviously will be prejudiced if the corporation’s

assets can be attached directly.”   Id. at 1577. Accordingly, we stated that

       [a]bsent a clear statement by the Supreme Court of Utah that it has
       adopted the [outsider] reverse piercing theory urged upon us here, we
       are inclined to conclude that more traditional theories of conversion,
       fraudulent conveyance of assets, respondeat superior and agency law
       are adequate to deal with situations where one seeks to recover from
       a corporation for the wrongful conduct committed by a controlling
       stockholder without the necessity to invent a new theory of liability.

Id.

       More recently, we considered whether the district court properly permitted

an outsider reverse pierce under Kansas law, in   Floyd v. IRS , 151 F.3d 1295,

1298-99 (10th Cir. 1998). At issue in the suit was the priority of claims held by

three different creditors in certain corporate assets. The IRS had a claim for

unpaid personal income taxes against the controlling shareholder of the

corporations, while the other creditors had judgments against both the controlling

shareholder and his corporations. The district court applied the reverse pierce

doctrine to grant the IRS priority to the corporate assets over the other creditors.


                                           -8-
       In considering whether the district court properly permitted a reverse

pierce, we rejected the IRS’ reliance on Kansas cases involving standard pierces,

concluding those precedents were not applicable to a reverse pierce.     Id. at 1298.

We also noted that the reverse pierce doctrine gives rise to problems beyond those

identified in Cascade Energy , including that innocent creditors of the corporation

may be prejudiced if the corporation’s assets are used to satisfy the personal debts

of an insider. Id. at 1299. Accordingly, we followed “     Cascade ’s federal law

conclusion that, in the absence of a clear statement of Kansas law by the Kansas

courts, we will not assume that such a potentially problematic doctrine already

has application in that state.”   Id. at 1300. Because the IRS had cited no authority

“suggesting that Kansas does or would recognize an outside reverse-piercing

claim,” id. at 1299, and our own research had revealed none, we reversed the

district court’s ruling.

       Likewise, Spears has cited no authority here suggesting that Oklahoma

does or would allow an outsider reverse pierce of the corporate veil, and our own

review of Oklahoma law reveals no such authority. Spears’ reliance on our

analysis in NLRB v. Greater Kansas City Roofing      , 2 F.3d at 1052, is misplaced,

because that case concerned a standard pierce of the corporate veil under federal

common law. In the absence of a clear statement by the Oklahoma courts, we will

not assume that Oklahoma would allow an outsider reverse pierce like that here.


                                           -9-
Therefore, we conclude the district court erred in affirming the bankruptcy court’s

reverse pierce of Native Elm’s corporate veil. Because this ruling disposes of

Spears’ claim to Native Elm’s assets, we need not decide whether the bankruptcy

court’s underlying instrumentality and fraud determinations were correct.

      The judgment of the United States District Court for the Western District

of Oklahoma is AFFIRMED in part and REVERSED in part, and the matter is

REMANDED for further proceedings consistent with this order and judgment.



                                                   Entered for the Court



                                                   Wade Brorby
                                                   Circuit Judge




                                        -10-
