Adrienne Grant v. Michael Grant ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
ADRIENNE GRANT, UNPUBLISHED
July 23, 2015
Plaintiff-Appellant,
v No. 320665
Oakland Circuit Court
MICHAEL GRANT, AFXISI USA, and INK LC No. 2013-137227-CZ
MARKETING,
Defendants,
and
ARMAND GRANT,
Defendant-Appellee.
Before: FORT HOOD, P.J., and SAAD and RIORDAN, JJ.
PER CURIAM.
Plaintiff appeals the trial court’s order that granted summary disposition to defendant
Armand Grant pursuant to MCR 2.116(C)(1). For the reasons stated below, we affirm.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff Adrienne Grant was married to Michael Grant, the son of eighty-year-old
defendant Armand Grant, from 1994 to 2012. Though Adrienne and Michael originally lived in
California, where Armand resides, they moved to Michigan in the mid 2000s. Because neither
Adrienne nor Michael were employed or had significant financial resources, Armand purchased
them a home in Oakland County, and gave Michael cash gifts throughout their marriage.
Armand also provided partial funding for Adrienne and Michael’s failed business ventures,
Afxisi USA, LLC (Afxisi), and Ink Marketing, LLC. These entities were Michigan corporations,
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and Adrienne and Michael were the representative agents of the companies.1 Armand did not
have an interest in either organization.
In May 2013, Adrienne and Michael divorced. Adrienne claims, without offering any
proofs or record of the divorce proceedings, that the judgment of divorce entitled her to “equity
in the marital home, spousal and child support, and receivables due.” The total amount of money
supposedly owed to Adrienne under this judgment is unspecified.
Michael died sometime after the divorce, and Adrienne shifted the focus of her legal
claims to her former father-in-law, Armand. She brought the instant lawsuit against Armand in
2013 in the Oakland Circuit Court, and claimed that Armand functioned as Michael’s “alter
ego,” because Michael purportedly hid his assets with Armand and the two corporations, Afxisi
and Ink Marketing, to avoid the judgment of divorce.2 To substantiate this somewhat unusual
legal theory, Adrienne served Armand with process on November 11, 2013. Strangely, she
failed to serve either Afxisi or Ink Marketing with process, despite being a named agent of both
companies, and the summons for both entities expired in February 2014.
Armand responded that Michigan was an inconvenient forum to litigate Adrienne’s case,
and filed a motion to quash service of process and dismiss the case. Specifically, Armand argued
that, under Adrienne’s legal theory and allegations: (1) all relevant events (the alleged
concealment of Michael’s assets) would have transpired in California; (2) all relevant witnesses
(Armand’s accountants, other business associates, and family members) and all relevant
evidence (Armand’s financial records) were located in California; and (3) any judgment obtained
by Adrienne would have to be enforced in California. Armand also emphasized that traveling to
Michigan was difficult for him, owing to old age and poor health. And Armand further stated
that Adrienne’s suit had no merit and was initiated to obtain an advantage in her federal action.
Adrienne averred that Michigan was an appropriate forum for her suit because: (1) she
and the unserved corporate defendants were Michigan residents; (2) the alleged injury occurred
in Michigan; (3) a Michigan judgment “would automatically be enforceable in California”; and
(4) Armand could allegedly afford to travel to Michigan, but she could supposedly not afford to
travel to California.
After a hearing on February 5, 2014, the trial court issued a written opinion and order that
granted Armand’s motion to dismiss the case on the grounds that Michigan was an inconvenient
1
The articles of organization for each company listed the registered office as Michael and
Adrienne’s Michigan home.
2
Adrienne has also brought another suit against Armand in the U.S. District Court for the
Eastern District of Michigan. In the action, she alleges Armand committed, among other things,
(1) conversion, (2) unjust enrichment, (3) breach of contract, and (4) breach of fiduciary duty in
his management of the sale of Adrienne and Michael’s Oakland County home. She also alleges
that Armand stole some of her jewelry from the residence.
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forum.3 And though it did not formally dismiss Adrienne’s claims as to the other defendants, the
court noted that its dismissal of the action against Armand “disposes of the last pending claim
and closes the case” because Adrienne had failed to serve the other defendants with process
within the applicable time period.
On appeal, Adrienne makes the same arguments regarding forum non conveniens that she
did at the hearing, while Armand asks us to uphold the trial court’s dismissal of the case.
Adrienne also asserts that her claims against Michael Grant, Afxisi, and Ink Marketing should be
reinstated.
II. STANDARD OF REVIEW
A trial court’s decision “to grant or deny a motion to dismiss a case on the basis of the
doctrine of forum non conveniens” is reviewed “for an abuse of discretion. An abuse of
discretion occurs when the decision results in an outcome falling outside the principled range of
outcomes.” Radeljak v DaimlerChrysler Corp, 475 Mich. 598, 603; 719 NW2d 40 (2006). In
other words, “[a]n abuse of discretion occurs only where the result is so palpably and grossly
violative of fact and logic that it evidences not the exercise of will but perversity of will, not the
exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or
bias.” Gates v Gates, 256 Mich. App. 420, 438; 664 NW2d 231 (2003).
III. ANALYSIS
A. INCONVENIENT FORUM
“ ‘Forum non conveniens’ is defined as the ‘discretionary power of the court to decline
jurisdiction when convenience of parties and ends of justice would be better served if action
were brought and tried in another forum.’ ” MDOT v Am Motorists Ins Co, 305 Mich. App. 250,
254; 852 NW2d 645 (2014), quoting Black’s Law Dictionary (6th ed). The doctrine
“presupposes the court has jurisdiction of both the parties and the subject-matter. [It] also
3
Specifically, the trial court held:
The Court finds that summary disposition is appropriate. Analyzing the private
interests of the litigants under the factors set forth in Cray v General Motors, 389
Mich. 382 (1972), the Court finds that Michigan is not a convenient forum and
that a more appropriate forum exists. The only party served in this lawsuit is
Defendant Armand Grant, who is a resident of California. . . . The Michigan
LLC’s listed as Defendants have not been served and the evidence presented
shows that they are not in good standing in Michigan and no longer conduct
business. Even if Plaintiff were to serve all Defendants, the necessary witnesses
who could testify regarding Defendant Armand Grant’s financial relationship with
the other Defendants reside in California and all financial records related to
Defendant are located in California. If a judgment were to be entered in
Plaintiff’s favor, it would have to be enforced in California.
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presupposes there is at least one forum other than the forum chosen where the plaintiff may bring
his cause of action.” Hernandez v Ford Motor Co, 280 Mich. App. 545, 552; 760 NW2d 751
(2008). “The application of forum non conveniens lies within the discretion of the trial judge,”
and a plaintiff’s selection of a forum is “ordinarily accorded deference.” Radeljak, 475 Mich. at
604.
To determine whether a forum is convenient for litigation, a court looks to the following
factors:
1. The private interest of the litigant.
a. Availability of compulsory process for attendance of unwilling and the
cost of obtaining attendance of willing witnesses;
b. Ease of access to sources of proof;
c. Distance from the situs of the accident or incident which gave rise to the
litigation;
d. Enforcibility [sic] of any judgment obtained;
e. Possible harassment of either party;
f. Other practical problems which contribute to the ease, expense and
expedition of the trial;
g. Possibility of viewing the premises.
2. Matters of public interest.
a. Administrative difficulties which may arise in an area which may not be
present in the area of origin;
b. Consideration of the state law which must govern the case;
c. People who are concerned by the proceeding;
3. Reasonable promptness in raising the plea of forum non conveniens.
[Cray v Gen Motors Corp, 389 Mich. 382, 395-396; 207 NW2d 393 (1973).]
Here, the trial court explicitly referenced the above factors when it held that Michigan
was an inconvenient forum for plaintiff to litigate her claim, and the court did not abuse its
discretion in so doing. Radeljak, 475 Mich. at 603. In its opinion, the trial court noted that
Armand Grant lived in California, and that all “necessary witnesses who could testify regarding
Defendant Armand Grant’s financial relationship with [Michael, Afxisi, and Ink Marketing]
reside in California.” It further observed that “all financial records related to [Armand] are
located in California.” And the trial court correctly observed that “if a judgment were to be
entered in [Adrienne’s] favor, it would have to be enforced in California.”
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As such, the trial court considered factors 1(a) (availability of witnesses), 1(b) (ease of
access to sources of proof), 1(f) (other practical problems which might contribute to ease,
expense, and expedition of trial), and found that they indicated Michigan was not a convenient
forum in which to litigate this case. Cray, 389 Mich. at 395-396. This decision is not so
“palpably and grossly violative of fact and logic”4 that it is “outside the range of principled
outcomes.” Radeljak, 475 Mich. at 603. In fact, there are number of other aspects of this case,
which the trial court did not explicitly consider, that support the trial court’s conclusion that
Michigan is not a convenient forum in which to bring this action, including: (1) Armand’s age
and poor health, and the accordant stress he faces when traveling from California to Michigan;
(2) the existence of Adrienne’s federal suit against Armand, which indicates that she might have
brought this state suit to harass him; and (3) the promptness with which Armand alleged that
Michigan was an inconvenient forum for this action. Cray, 389 Mich. at 395-396.
Moreover, it is unclear whether Adrienne actually has a cause of action against Armand,
because she has simply alleged that Armand, Afxisi, and Ink Marketing are “alter egos” of the
deceased Michael, that are being used to conceal his assets from the divorce judgment. Were we
nonetheless to assume that Adrienne has a valid cause of action, it is debatable whether a natural
person can serve as an “alter ego” of another, or whether a corporation of which Adrienne is an
integral part could serve as an “alter ego” for the concealment of Michael’s assets. See Lakeview
Commons v Empower Yourself, 290 Mich. App. 503, 509-510; 802 NW2d 712 (2010).
Accordingly, the trial court did not abuse its discretion when it dismissed Adrienne’s suit
against Armand.
B. DISMISSAL OF CASE AGAINST REMAINING DEFENDANTS
Unless a defendant consents to jurisdiction, service of process is necessary for the court to
acquire personal jurisdiction over that defendant. Dogan v Mich Basic Prop Ins Ass’n, 130 Mich
App 313, 320; 343 NW2d 532 (1983). Service of a valid summons is a necessary part of service
of process. Holliday v Townley, 189 Mich. App. 424, 425-426; 473 NW2d 733 (1991). A
summons is valid only for a limited time, and expires 91 days after the date the complaint is filed.
MCR 2.102(D). The summons may be extended upon a showing of due diligence, but the order
extending the summons must be entered within the life of the summons. Moriarity v Shields, 260
Mich. App. 566, 572-575; 678 NW2d 642 (2004). If a defendant is not served with process during
the life of the summons, the action is deemed dismissed with respect to that defendant. MCR
2.102(E)(1).
Here, as noted, Adrienne served Armand with process, but failed to do so as to the other
three defendants: Michael Grant, Afxisi, and Ink Marketing. The original summonses expired on
February 6, 2014, while the parties’ motions were pending. The trial court therefore properly
concluded that Adrienne’s claims as to Michael, Afxisi, and Ink Marketing were dismissed as of
that time. MCR 2.102(E)(1).
4
Gates, 256 Mich. App. at 438.
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Affirmed.
/s/ Karen M. Fort Hood
/s/ Henry William Saad
/s/ Michael J. Riordan
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