Shambhu Patel v. Hemant Patel ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
SHAMBHU PATEL, FOR PUBLICATION
June 19, 2018
Plaintiff-Appellant, 9:00 a.m.
v No. 339878
Ottawa Circuit Court
HEMANT PATEL, JAIMIN PATEL, a/k/a LC No. 16-004469-CB
JIMMY PATEL, and VISHNU SHREE II, INC.,
Defendants-Appellees.
Before: MURRAY, C.J., and MARKEY and TUKEL, JJ.
PER CURIAM.
Plaintiff Shambhu (“Sam”) Patel, and his two brothers, defendants Hemant (“La La”)
Patel and Jaimin (“Jimmy”) Patel, in 2001, incorporated defendant Shree Vishnu II (SVII), to
purchase and operate a hotel in Holland, Michigan known as the Holland Econolodge or the
Holland Economy Inn.1 Sam brought a shareholder oppression suit against defendants in 2016.
Among the defenses that defendants asserted were waiver and promissory estoppel based on a
handwritten letter plaintiff wrote on June 17, 2006; defendants allege that plaintiff in the letter
surrendered all of his interest in the hotel to his two brothers. After a bench trial on the issue of
waiver, the trial court ruled in defendants’ favor in an opinion and order of July 28, 2017. The
trial court entered its judgment of no cause of action on August 18, 2017. Plaintiff appeals by
right. He also appeals the trial court’s award of mediation fees as taxable costs. We affirm.
I. WAIVER
A. STANDARD OF REVIEW
This Court reviews for clear error the trial court’s factual findings following a bench trial
and reviews de novo the trial court’s conclusions of law. Ligon v Detroit, 276 Mich. App. 120,
124; 739 NW2d 900 (2007). “A finding is clearly erroneous where, although there is evidence to
support the finding, the reviewing court on the entire record is left with the definite and firm
1
For convenience and to avoid confusion, we will refer to the brothers by their first name
(Hemant) or nicknames (Sam and Jimmy).
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conviction that a mistake has been made.” Ambs v Kalamazoo Co Rd Comm, 255 Mich. App.
637, 651; 662 NW2d 424 (2003). On appellate review, this Court must accord deference to the
trial court’s superior ability to judge the credibility of the witnesses who appear before it. Id. at
652; MCR 2.613(C).
A waiver consists of the intentional relinquishment or abandonment of a known right.
Sweebe v Sweebe, 474 Mich. 151, 156-157; 712 NW2d 708 (2005). “Waiver is a mixed question
of law and fact. The definition of a waiver is a question of law, but whether the facts of a
particular case constitute a waiver is a question of fact.” Id. at 154 (citation omitted). “The party
asserting the waiver bears the burden of proof.” The Cadle Co v City of Kentwood, 285 Mich
App 240, 255; 776 NW2d 145 (2009). Magic words are unnecessary to effectuate a valid
waiver, but a waiver must be explicit, voluntary, and made in good faith. Sweebe, 474 Mich. at
157. In order to ascertain whether a waiver exists, a court must determine if a reasonable person
would have understood that he or she was waiving the interest in question. Id.; Reed Estate v
Reed, 293 Mich. App. 168, 176; 810 NW2d 284 (2011). Thus, a valid waiver may be shown by
“express declarations or by declarations that manifest the parties’ intent and purpose,” Sweebe,
474 Mich. at 157, or be an implied waiver, “evidenced by a party’s decisive, unequivocal conduct
reasonably inferring the intent to waive.” Reed Estate, 293 Mich. App. at 177 (citation omitted).
B. ANALYSIS
We conclude that the trial court did not clearly err by finding “plaintiff intentionally and
voluntarily relinquished his known right to an ownership interest in the corporation owning the
Holland hotel” by writing and delivering to his two brothers the June 17, 2006 letter that
“explicitly indicated that [plaintiff] did not want ‘anything’ or ‘whatever’ from the Holland
hotel,” and that defendants Hemant Patel and Jaimin Patel “should ‘share’ or ‘split’ what would
come from the hotel . . . .” The trial court’s finding is supported by the plain meaning of the
words that plaintiff voluntarily wrote in the letter addressed to his two brothers. The three
brothers’ conduct after 2006, which showed that plaintiff never participated in hotel operations
and did not provide any assistance to save the hotel from bank foreclosure (2013) or from being
shut down by the city of Holland because of alleged ordinance violations (2014), also supports
the trial court’s finding. Consequently, the trial court did not clearly err by ruling that because
plaintiff “waived his rights as a shareholder in 2006, he did not have standing to pursue claims
for damages, accounting, or dissolution of SVII in 2016.” We affirm the trial court’s judgment
dismissing plaintiff’s shareholder action.
Plaintiff asserts that the trial court’s findings were against the great weight of the
evidence. Plaintiff, while professing not to quarrel with the trial court’s findings of fact, argues
that the trial court erred by concluding defendants satisfied their burden of proof by the
preponderance of the evidence that plaintiff waived his interest in the Holland hotel by writing
and delivering the June 17, 2006 letter. See The Cadle Co, 285 Mich. App. at 255 (“The party
asserting the waiver bears the burden of proof.”). But plaintiff does attack certain of the trial
court’s individual findings of fact and also attacks the trial court’s ultimate finding of fact of a
valid waiver. Sweebe, 474 Mich. at 154 (“[W]hether the facts of a particular case constitute a
waiver is a question of fact.”). Ultimately, we conclude that the trial court’s findings are not
clearly erroneous because the evidence supports them, and where testimony conflicts, we must
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accord deference to the trial court’s superior ability to judge the credibility of the witnesses who
appear before it. Ambs, 255 Mich. App. at 652; MCR 2.613(C).
Plaintiff argues that the plain meaning of the words he wrote should not be applied
because he only intended to comfort the brothers’ father by showing there was not a family feud
over money and delivered the letter to his father, not his brothers. But plaintiff’s testimony in
this regard was contradicted by the testimony of his brothers. The trial court found defendants’
testimony on this point more credible than plaintiff’s testimony. Moreover, the trial court’s
finding was supported by the fact that the letter was addressed to plaintiff’s brothers (Jimmy, La
La). The finding was further supported by the lack of evidence that the June 17, 2006 letter was
ever in the possession of the brothers’ father, other than plaintiff’s own testimony that the trial
court determined lacked credibility. The trial court’s findings that plaintiff delivered the letter to
his brothers and intended the plain meaning of the words he wrote are not clearly erroneous.
MCR 2.613(C); Ambs, 255 Mich. App. at 652.
Plaintiff’s other arguments also lack merit because they do not undermine the trial court’s
factual findings. Plaintiff argues the “fact” that he remains personally liable for the Holland
hotel’s debt undercuts the trial court’s finding. But plaintiff points to no part of the record where
this “fact” is established. Rather, the record evidence shows that in 2013, the Holland hotel’s
bank called its outstanding loan balance and defendants refinanced the debt without plaintiff’s
assistance or participation. Whether plaintiff remains liable regarding any personal guarantees
he gave before 2006 is pure speculation. Plaintiff’s argument does not undermine the trial
court’s factual findings that “plaintiff intentionally and voluntarily relinquished his known right
to an ownership interest in the corporation owning the Holland hotel” by writing and delivering
to his two brothers the June 17, 2006 letter.
Similarly, plaintiff’s argument—that the Hindu phrase “Oh Namoh Shivay” would not be
written at the top of the June 2006 letter if it were a business document—also does not
undermine the trial court’s factual findings. The evidence at trial showed all three brothers did
not attend to legal details as a lawyer or accountant would. Further, the letter was written after
plaintiff had accused his brothers of stealing money from SVII. Immediately before writing that
he did not want anything from the hotel, plaintiff wrote: “I don’t have any hard feeling. If I did
something wrong I am sorry.” Plaintiff testified at trial that the phrase at issue had religious
implications similar to invoking Deity so its placement on a letter to brothers with whom he was
in business, to settle past differences, does not undercut the trial court’s finding that plaintiff
meant what he wrote: “I don’t want from [the Holland hotel] whatever comes you share it.”
Plaintiff argues he did not waive his interest in the Holland hotel because he continued to
receive payments from hotel profits between 2006 and 2011. But all three brothers agreed that
the money plaintiff received during that time period were for the necessities of plaintiff and his
family when plaintiff was not succeeding in business. Further, the trial court found credible
defendant brothers’ testimony that the payments were essentially charitable gifts, not business
profit distributions. Further, the testimony of Hemant and Jimmy was supported by bank and tax
records that showed the distributions were included in defendants’ taxable income but were not
taxable to plaintiff. The trial court’s findings regarding the payments plaintiff received are not
clearly erroneous. MCR 2.613(C); Ambs, 255 Mich. App. at 651-652.
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Plaintiff’s remaining arguments also lack merit. Plaintiff’s argument that defendant
brothers set up Jai Gain, LLC, to siphon hotel profits away from plaintiff is totally without
evidentiary support. Plaintiff’s argument concerning corporate filings of SVII in 2013 do not
alter or effect the plain meaning of plaintiff’s June 17, 2006 letter. Similarly, plaintiff’s
contention that he had no motive to waive his interest in SVII is unavailing. The testimony at
trial and the letter itself speaks to plaintiff’s motivation—to make amends with his brothers for
his actions and to heal their brotherly relationship. Plaintiff wrote in the June 17, 2006 letter: “If
you wish to keep relation as brother it up to you.”—and also wrote—“I don’t have any hard
feeling. If I did something wrong I am sorry.” This clearly demonstrates plaintiff’s motivation
and supports, not undercuts, the trial court’s factual determination that “plaintiff intentionally
and voluntarily relinquished his known right to an ownership interest in the corporation owning
the Holland hotel.” The trial court’s finding of waiver is not clearly erroneous. MCR 2.613(C).
In sum, the trial court did not clearly err by finding that plaintiff waived his interest in the
Holland hotel by writing and delivering to his two brothers the June 17, 2006 letter that
“explicitly indicated that [plaintiff] did not want ‘anything’ or ‘whatever’ from the Holland
hotel,” and that defendants Hemant Patel and Jaimin Patel “should ‘share’ or ‘split’ what would
come from the hotel.” MCR 2.613(C); Ambs, 255 Mich. App. at 651-652. The record supports
that defendants proved plaintiff’s waiver by the preponderance of the evidence. The Cadle Co,
285 Mich. App. at 255. Although the June 17, 2006 letter did not contain legal terminology,
magic words are not necessary for a valid waiver. Sweebe, 474 Mich. at 157. Plaintiff’s letter
contained “express declarations” and “declarations that manifest[ed] [plaintiff’s] intent and
purpose” to waive his interest in the Holland hotel and convey it equally to his two brothers. Id.
As a result, the trial court properly dismissed plaintiff’s shareholder action under MCL 450.1489.
II. TAXABLE COST – MEDIATION
A. STANDARD OF REVIEW
The proper interpretation and application of a court rule is a question of law that is
reviewed de novo. Henry v Dow Chem Co, 484 Mich. 483, 495; 772 NW2d 301 (2009).
Likewise, whether a particular expense is taxable as a cost is a question of law, also reviewed de
novo. Guerrero v Smith, 280 Mich. App. 647, 670; 761 NW2d 723 (2008).
B. ANALYSIS
We conclude that under the plain meaning of MCR 2.625(A)(1), MCR 2.411(D)(4), and
MCL 600.2405(2), the trial court did not err by assessing mediation fees as taxable costs.
“The power to tax costs is purely statutory, and the prevailing party cannot recover such
expenses absent statutory authority.” Guerrero, 280 Mich. App. at 670; see also Beach v State
Farm Mut Auto Ins Co, 216 Mich. App. 612, 621; 550 NW2d 580 (1996). MCL 600.2405 lists
various items that may be taxed as costs and awarded to a prevailing party, including “[m]atters
specially made taxable elsewhere in the statutes or rules.” MCL 600.2405(2).
When interpreting a court rule, the principles used to interpret statutes apply. Henry, 484
Mich. at 495. Construction begins by considering the plain language of the statute or court rule in
order to ascertain its meaning. Id. Generally, clear statutory language must be enforced as
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written. Velez v Tuma, 492 Mich. 1, 16-17; 821 NW2d 432 (2012). So too with court rules,
“unambiguous language is given its plain meaning and is enforced as written.” Fleet Business
Credit v Krapohl Ford Lincoln Mercury Co, 274 Mich. App. 584, 591; 735 NW2d 644 (2007).
The starting point is MCR 2.625(A)(1). It provides: “Costs will be allowed to the
prevailing party in an action, unless prohibited by statute or by these rules or unless the court
directs otherwise, for reasons stated in writing and filed in the action.” Id. The court rule
presumes that the prevailing party may tax its costs unless a statute, other court rule, or the
presiding judge has ordered otherwise. See Guerrero, 280 Mich. App. at 671; quoting Beach, 216
Mich. App. at 622. In this case, plaintiff does not point to a statute, court rule, or decision by the
trial court that would prohibit mediation expenses as a taxable cost under MCR 2.625(A)(1).
The trial court ruled that defendants’ mediation expense was a taxable cost under
MCR 2.411(D)(4), which provides that a “mediator’s fee is deemed a cost of the action, and the
court may make an appropriate order to enforce the payment of the fee.” The trial court did not
err by applying the plain terms of MCL 600.2405(2), which includes as a taxable cost any matter
“made taxable elsewhere in the statutes or rules.” MCR 2.411(D)(4) plainly provides a
“mediator’s fee is deemed a cost of the action”—thus becoming a taxable cost under MCL
600.2405(2), and authorizing the assessment of mediation fees as a taxable cost under
MCR 2.625(A)(1). That the second clause of MCR 2.411(D)(4) authorizes a court to “make an
appropriate order to enforce the payment of the [mediator’s] fee” does not diminish the plain
terms of the first clause of MCR 2.411(D)(4). When interpreting a statute or court rule, “[a]s far
as possible, effect should be given to every sentence, phrase, clause, and word.” Diallo v
LaRochelle, 310 Mich. App. 411, 418; 871 NW2d 724 (2015) (citation and quotation marks
omitted). Consequently, we affirm the trial court’s award of defendants’ mediation expense as a
taxable cost under MCR 2.625(A)(1).
We affirm. As the prevailing party, defendants may tax their costs under MCR 7.219.
/s/Christopher M. Murray
/s/ Jane E. Markey
/s/ Jonathan Tukel
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