Scott Fowler v. Donald Keiper ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
SCOTT FOWLER, UNPUBLISHED
June 22, 2023
Plaintiff/Counterdefendant-
Appellant/Cross-Appellee,
v No. 360216
Wayne Circuit Court
DONALD KEIPER and US ICE BLASTING, LLC, LC No. 19-015323-CB
Defendants-Appellees/Cross-
Appellants,
and
KEIPER MECHANICAL, INC.,
Defendant/Counterplaintiff-
Appellee/Cross-Appellant.
Before: MARKEY, P.J., and JANSEN and K. F. KELLY, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court order dismissing the last remaining claim of the
case in this business-related suit between two former friends. Plaintiff’s arguments on appeal
relate to previous court orders granting defendants, Donald Keiper (Don), Keiper Mechanical, Inc.
(KMI), and US Ice Blasting, LLC (US Ice) summary disposition of plaintiff’s four claims.
Defendants cross-appeal as of right the same order of final judgment on all claims and
counterclaims, as well as the order granting plaintiff’s motion to reopen the case and enter final
judgment. We affirm.
I. FACTUAL BACKGROUND
Plaintiff and Don met in high school and were friends for over 30 years. After serving in
the Marine Corps together, plaintiff went into plumbing and Don into heating, ventilation, and air
conditioning (HVAC). In 2001, Don formed KMI, a commercial and residential plumbing,
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heating, and insurance restoration business. According to plaintiff, Don asked plaintiff to join the
company for a 10% interest after five years with no buy-in, and plaintiff declined because KMI
was nonunion. In the summer of 2002, plaintiff formed his own business called Workforce
Construction, and performed two to three jobs installing sump pumps for the city of Auburn Hills.
Later in 2002, KMI joined the union, and according to plaintiff, he and Don agreed that plaintiff
would join KMI under their previously agreed terms. Plaintiff started working for KMI as a
plumber on September 8, 2002.
Plaintiff alleged that in 2005, he, Don, and their friend, Eric Whitcomb, attended dinner
before their 15-year high school reunion and at dinner, Don presented plaintiff with a loose-leaf
paper indicating that as of that date, plaintiff had a 10% ownership interest in KMI, which they
both signed. Plaintiff had this paper for many years, but lost it in a move. Plaintiff alleged that in
2008, he and Don had lunch and orally agreed to modify their previous agreement to make plaintiff
a 49% owner of KMI, and Don 51%. Plaintiff alleged that he and Don met with attorneys or
discussed having an attorney formalize their agreement several times over the years, but it was
never done.
Plaintiff alleged that in 2017, he forwent a substantial year-end bonus because he and Don
agreed to use the money they each would have received to make a down payment on the building
KMI occupied at 12201 Merriman Road in Livonia. According to plaintiff, the parties agreed to
do this with the expectation that they would share in the proceeds from the eventual sale of the
building when they chose to retire. The Merriman property is under a land contract dated
February 22, 2019, by Seaway Realty Properties, LLC, to Keiper Real Estate, LLC. 1
Plaintiff alleged that in spring or summer 2018, Don showed interest in starting an ice
blasting business—a cleaning method for industrial equipment, fire damage, and large-scale
projects. According to plaintiff, he and Don agreed that Don would be a 34% owner in the newly
formed US Ice, plaintiff would be 33%, and Don’s son would be the remaining 33%. Plaintiff
alleged that Don formed US Ice in October 2018 behind his back, and he received no financial
benefit.
The relationship between plaintiff and Don began to break down in May 2019, resulting in
no communication by June. On November 5, 2019, during a confrontation regarding changing a
work schedule, Don told plaintiff that his tenure with KMI was over. Don told plaintiff that if he
did not return the keys to a KMI truck plaintiff used for business and personal use, Don would
report it stolen to the police. Don did this, and plaintiff was ultimately arrested for driving a stolen
vehicle.
II. PROCEDURAL BACKGROUND
Plaintiff filed a first amended complaint against defendants alleging four counts: (I)
shareholder oppression, (II) breach of fiduciary duty, (III) breach of partnership agreement, and
(IV) breach of contract related to (1) the alleged agreement that plaintiff was a shareholder of KMI,
1
The address listed on the land contract for both Seaway Realty and Keiper Real Estate is the
address of the Merriman property itself—12201 Merriman Road.
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(2) the alleged agreement to split the proceeds from the eventual sale of the Merriman property,
and (3) the alleged agreement that plaintiff was an owner of US Ice. KMI counterclaimed against
plaintiff for (I) tortious interference with business relationships and (II) conversion. Defendants
moved for summary disposition of all of plaintiff’s claims, and plaintiff moved for summary
disposition of KMI’s counterclaims.
The court granted defendants summary disposition of Counts I (shareholder oppression),
II (breach of fiduciary duty), III (breach of partnership agreement), and IV (breach of contract
related to Merriman property and US Ice); it denied defendants summary disposition of Count IV
in relation to the alleged agreement that plaintiff was a shareholder of KMI. The court granted
plaintiff summary disposition of KMI’s counterclaim for tortious interference (Count I) and denied
plaintiff summary disposition of KMI’s counterclaim for conversion (Count II). Defendants
moved for reconsideration of this order, arguing that the court committed a manifest error because
it granted summary disposition of plaintiff’s shareholder oppression claim in Count I, but denied
summary disposition of plaintiff’s breach-of-contract claim in Count IV regarding an alleged
shareholder agreement, incorrectly presuming that Count IV was based on different factual
allegations. The court agreed, granting defendants reconsideration, and dismissing the remaining
breach-of-contract claim in Count IV. Plaintiff moved for reconsideration of this order, which the
court struck as an impermissible successive motion. On November 16, 2021, the court entered a
stipulated order of voluntary dismissal of Count II of KMI’s counterclaim, stating that it resolved
the last pending claim and closed the case.
Plaintiff filed a claim of appeal of the November 16, 2021 order in Docket No. 359509;
however, he simultaneously moved in the trial court to reopen the case and enter a final judgment
on all claims and counterclaims because the stipulated dismissal order was ambiguous whether it
was a final order—it dismissed KMI’s counterclaim Count II without prejudice, but stated that it
resolved all claims and closed the case. Defendants moved in this Court to dismiss plaintiff’s
claim of appeal for lack of jurisdiction, which this Court granted. Fowler v Keiper, unpublished
order of the Court of Appeals, entered January 25, 2022 (Docket No. 359509). Thereafter, the trial
court entered an order reopening the case and directing plaintiff to enter a final judgment on all
claims and counterclaims. On February 7, 2022, the trial court entered this order granting
plaintiff’s motion to reopen the case, and dismissed Count II of KMI’s counterclaim with
prejudice, constituting an adjudication on the merits. This order resolved all claims and closed the
case. Plaintiff then filed his claim of appeal in this case, Docket No. 360216,2 and defendants filed
a cross-appeal.3
2
Plaintiff also filed a claim of appeal in Docket No. 360845, which was dismissed for lack of
jurisdiction. Fowler v Keiper, unpublished order of the Court of Appeals, entered April 5, 2022
(Docket No. 360845).
3
We note briefly defendants’ assertion on appeal that this Court lacks jurisdiction over the
February 7, 2022 order dismissing the last remaining claim. As the parties concede, this Court
dismissed plaintiff’s initial appeal of right for lack of jurisdiction, and plaintiff timely filed a claim
of appeal from the February 7, 2022 final order. Because Count II of KMI’s counterclaim was
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III. STANDARDS OF REVIEW
“This Court reviews de novo the grant or denial of a motion for summary disposition to
determine if the moving party is entitled to judgment as a matter of law.” Glasker-Davis v
Auvenshine, 333 Mich App 222, 229; 964 NW2d 809 (2020) (quotation marks and citation
omitted). Defendants moved for summary disposition under MCR 2.116(C)(8) and (10). A motion
for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on
the factual allegations in the complaint. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159;
934 NW2d 665 (2019). The trial court must accept all of the factual allegations in the complaint
as true, and decide the motion on the pleadings alone. Id. at 160. A motion under this subrule can
only be granted when the claim is so clearly unenforceable that no factual development could
possibly justify recovery. Id.
A motion under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Id. “A trial
court may grant a motion for summary disposition under MCR 2.116(C)(10) when the affidavits
or other documentary evidence, viewed in the light most favorable to the nonmoving party, show
that there is no genuine issue as to any material fact and the moving party is therefore entitled to
judgment as a matter of law.” Glasker-Davis, 333 Mich App at 229 (quotation marks and citation
omitted). “A genuine issue of material fact exists when the record leaves open an issue upon which
reasonable minds might differ.” El-Khalil, 504 Mich at 160 (quotation marks and citation
omitted).
IV. SHAREHOLDER OPPRESSION
Plaintiff first argues that the trial court erred in dismissing his claim for shareholder
oppression because he sufficiently pleaded this claim, and genuine issues of material fact exist
regarding whether he is a shareholder of KMI. We disagree.
MCL 450.1489 of the Michigan Business Corporation Act (MBCA), MCL 450.1101 et
seq., provides that “[a] shareholder” may bring an action “to establish that the acts of the directors
or those in control of the corporation are illegal, fraudulent, or willfully unfair and oppressive to
the corporation or to the shareholder.” MCL 450.1489(1). The statute does not contain the word
“minority,” but courts have described the statute as allowing for actions by “minority
shareholders,” see e.g., Madugula v Taub, 496 Mich 685, 697; 853 NW2d 75 (2014), presumably
because minority shareholders are generally vulnerable to oppression, see Estes v Idea Engineering
& Fabrications, Inc, 250 Mich App 270, 278; 649 NW2d 84 (2002). A shareholder who succeeds
in establishing director misconduct may be granted a wide variety of equitable relief. MCL
450.1489(1)(a)-(f). However, the plaintiffs in a suit under MCL 450.1489(1) “may only be current
shareholders.” Estes, 250 Mich App at 282.
The Michigan Supreme Court has recognized the contractual nature of the relationship
between a corporation and its shareholders, and has looked to a corporation’s articles of
previously dismissed without prejudice, under MCR 2.504(A)(1), the trial court’s express
dismissal of Count II with prejudice constitutes an order entered after reversal of an earlier
judgment or order, so it is a final order under MCR 7.202(6)(a)(i), and this Court has jurisdiction.
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incorporation, bylaws, and governing statutes to determine a shareholder’s interests. Madugula,
496 Mich at 718. Additionally, the MBCA defines “shareholder” as “ ‘a person that holds units
of proprietary interest in a corporation . . . .’ ” Id., quoting MCL 450.1109(2). Among the rights
shareholders have are “the right to vote, inspect the books, and receive distributions.” Madugula,
496 Mich at 718. Shareholders may also enter into shareholder agreements, the corporation’s
breach of which may be evidence of shareholder oppression. Id. at 718-719.
The evidence plaintiff presented was insufficient to create a genuine issue of fact, but
rather, the evidence establishes that he is not a shareholder, and therefore, summary disposition
was proper under MCR 2.116(C)(10).
The KMI articles of incorporation listed Don as the registered agent, and were signed by
Don only on November 28, 2001. The KMI bylaws stated there would be one director, and that
the certificates for shares shall be signed by the chairman, president or vice present, and the
treasurer or secretary. The bylaws were signed by Don only. The yearly minutes of the meetings
of the incorporators, shareholders, and board of directors of KMI noted that Don held the office of
president, vice president, secretary, and treasurer, and was the only person “present” for such
meetings. Plaintiff did not believe that any shareholder meetings were held, but he was not present
at any, and believed that his 49% ownership interest meant he held shares in the company. The
only stock certificate in the record awarded Don 1,000 shares. Schedule K-1 tax forms for
shareholder’s share of income, deductions, credits, etc., were issued to Don from 2014 to 2019.
Plaintiff admitted he never received a Schedule K-1 during his tenure with KMI. Plaintiff did not
have access to KMI’s books; Don and his wife, Christine Keiper, handled them. Plaintiff did not
do any banking for KMI, and never signed any checks. He never saw any stock certificates or
discussed stock options as an employee.
Plaintiff was married to Monica Fowler in 2007, and they divorced in 2015. Plaintiff filed
the complaint, swore the allegations were true, and represented that the marital assets were the
house, two vehicles, two 401(k)s, and a pension; separate assets were personal belongings and
checking and savings accounts. Nowhere in the complaint is any reference to ownership in any
business because, according to plaintiff, it was not necessary or in dispute in the divorce.
Thus, viewed in a light most favorable to plaintiff, this evidence establishes that there is no
genuine issue of material fact that plaintiff was not a shareholder of KMI. Therefore, he lacked
standing to bring a claim for shareholder oppression under MCL 450.1489, and summary
disposition of Count I was proper.
V. BREACH OF FIDUCIARY DUTY
Plaintiff argues that the trial court improperly dismissed his claim for breach of fiduciary
duty because as the “minority shareholder,” Don owed him fiduciary duties, which he breached.
We disagree.
“A fiduciary relationship is one in which one person is under a duty to act for the benefit
of the other on matters within the scope of the relationship.” Murphy v Inman, 509 Mich 132, 146;
983 NW2d 354 (2022) (quotation marks and citation omitted). In Michigan, directors and officers
of corporations owe fiduciary duties and a strict duty of good faith to the corporation they serve,
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as well as directly to its shareholders. Id. at 147-148. Here, however, there is no genuine issue of
material fact that plaintiff is not a shareholder, as discussed above. This is fatal to his claim for
breach of fiduciary duty. Therefore, the trial court properly granted defendants summary
disposition of Count II of the amended complaint because summary disposition is appropriate
under MCR 2.116(C)(10).
VI. BREACH OF PARTNERSHIP AGREEMENT
Plaintiff argues that the trial court erred in dismissing his claim for breach of partnership
agreement because a partnership can exist simultaneously with other corporate entities, and
plaintiff established genuine issues of material fact that the parties were partners. We disagree.4
The Uniform Partnership Act (UPA), MCL 449.1 et seq., defines a partnership as “an
association of 2 or more persons, which may consist of husband and wife, to carry on as co-owners
a business for profit[.]” MCL 449.6(1). This statute also provides:
(2) But any association formed under any other statute of this state, or any
statute adopted by authority, other than the authority of this state, is not a
partnership under this act, unless such association would have been a partnership
in this state prior to the adoption of this act; but this act shall apply to limited
partnerships except in so far as the statutes relating to such partnerships are
inconsistent therewith. [MCL 449.6(2).]
The trial court did not specify whether it granted defendants summary disposition of this
claim under MCR 2.116(C)(8) or (10). Defendants argue summary disposition was appropriate
under MCR 2.116(C)(8) because MCL 449.6(2) precludes the existence of a partnership between
the parties because KMI is a corporation and US Ice is an LLC. Plaintiff relies on Byker v Mannes,
465 Mich 637; 641 NW2d 210 (2002), to argue that this is a misstatement of the law.
In Byker, the issue was whether the parties had a “super partnership” over several corporate
entities they created, including limited partnerships, corporations, and a partnership. Id. at 640.
However, the issue considered by the Supreme Court specifically was whether MCL 449.6(1)
requires a subjective intent to form a partnership or merely an intent to carry on, as co-owners, a
business for profit. Id. at 638. The Court held that under MCL 449.6(1), “in ascertaining the
existence of a partnership, the proper focus is on whether the parties intended to, and in fact did
‘carry on as co-owners a business for profit’ and not on whether the parties subjectively intended
to form a partnership.” Id. at 653. The Court remanded the matter to this Court for an analysis
under the proper test to determine whether a partnership existed, id., and did not discuss or analyze
MCL 449.6(2). On remand, this Court again determined that no super partnership existed. Byker
v Mannes (On Remand), unpublished per curiam opinion of the Court of Appeals, entered
February 25, 2003 (Docket No. 205266), p 1, rev’d 469 Mich 881 (2003). The Michigan Supreme
4
In addition to the standards of review for a motion for summary disposition provided above that
also apply here, we review issues of statutory interpretation de novo. Spectrum Health Hosps v
Farm Bureau Mut Ins Co of Mich, 492 Mich 503, 515; 821 NW2d 117 (2012).
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Court reversed this decision, reinstating the decision of the circuit court that a super partnership
did exist. Byker v Mannes, 469 Mich 881, 668 NW2d 909 (2003).
The Byker case is distinguishable from the facts at hand, which does not include a super
partnership, and plaintiff’s argument relying on it is unpersuasive as the Byker line of decisions
does not discuss or analyze MCL 449.6(2).
The primary goal of statutory interpretation is to ascertain the legislative intent that
may reasonably be inferred from the statutory language. The first step in that
determination is to review the language of the statute itself. Unless statutorily
defined, every word or phrase of a statute should be accorded its plain and ordinary
meaning, taking into account the context in which the words are used. We may
consult dictionary definitions to give words their common and ordinary meaning.
When given their common and ordinary meaning, the words of a statute provide
the most reliable evidence of its intent[.] [Spectrum Health Hosps, 492 Mich at 515(quotation marks, brackets, and citation omitted).]
MCL 449.6(2) clearly states that “any association formed under any other statute of this state . . .
is not a partnership under this act.” It is undisputed that KMI is a corporation, and US Ice is an
LLC. Therefore, plaintiff’s claim for breach of a partnership agreement fails to state a claim upon
which relief can be granted, and summary disposition was proper under MCR 2.116(C)(8).5
VII. BREACH OF CONTRACT
“A party asserting a breach of contract must establish by a preponderance of the evidence
that (1) there was a contract (2) which the other party breached (3) thereby resulting in damages
to the party claiming breach.” Miller-Davis Co v Ahrens Constr, Inc, 495 Mich 161, 178; 848
NW2d 95 (2014). “A valid contract requires five elements: (1) parties competent to contract, (2)
a proper subject matter, (3) legal consideration, (4) mutuality of agreement, and (5) mutuality of
obligation.” AFT Mich v Michigan, 497 Mich 197, 235; 866 NW2d 782 (2015). “The party
seeking to enforce a contract bears the burden of proving that the contract exists.” Id. If the parties
do not agree on the material terms of a contract, then there is no meeting of the minds and no
enforceable contract. Kamalnath v Mercy Mem Hosp Corp, 194 Mich App 543, 548; 487 NW2d
499 (1992). “A meeting of the minds is judged by an objective standard, looking to the express
words of the parties and their visible acts, not their subjective states of mind.” Id. (quotation marks
and citation omitted). A “meeting of the minds” simply means mutual assent. Id. at 548-549.
A. PURCHASE OF MERRIMAN BUILDING
Plaintiff argues that summary disposition of this claim was improper because Don breached
their agreement by purchasing the property under a holding company with KMI funds, and the
statute of frauds defense does not apply and is waived.
5
This renders discussion of whether summary disposition was proper under MCR 2.116(C)(10)
unnecessary.
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The statute of frauds specifies that certain contracts must be in writing to be enforceable.
MCL 566.106 provides:
No estate or interest in lands, other than leases for a term not exceeding 1
year, nor any trust or power over or concerning lands, or in any manner relating
thereto, shall hereafter be created, granted, assigned, surrendered or declared,
unless by act or operation of law, or by a deed or conveyance in writing, subscribed
by the party creating, granting, assigning, surrendering or declaring the same, or by
some person thereunto by him lawfully authorized by writing.
Plaintiff asserts that the statute of frauds does not apply because the alleged agreement was
only for the proceeds for the sale of the Merriman property, rather than an interest in the property
itself. The Michigan Supreme Court has stated that “ ‘[t]he general rule is that agreements to share
profits and losses arising from the purchase and sale of real estate are not contracts for the sale or
transfer of interests in land and need not be in writing.’ ” Koffman v Mathews, 352 Mich 390, 398;
89 NW2d 756 (1958), quoting Price v Nellist, 316 Mich 418, 422; 25 NW2d 512 (1947); see also
In re Handelsman, 266 Mich App 433, 440; 702 NW2d 641 (2005). Plaintiff’s argument, however,
is disingenuous as he states in his brief on appeal, as well as in the question presented of this issue,
that he and Don “entered into an oral agreement to jointly purchase the real property” and split
the proceeds from a future sale, and that Don “breached this agreement by acquiring the property
for himself.” Moreover, this rule is limited to cases where the partnership “was formed to deal in
real estate as a commercial proposition; that is, to speculate by buying and selling real estate, or
interests therein, for profit.” 18 ALR 484, § 1. Excluded from this rule are cases where “the
holding or acquiring of real estate is merely incidental to the carrying on of the business for which
the partnership was formed.” Id.; see also 95 ALR 1242. The acquiring of the Merriman property
was incidental to the business of KMI, and was simply where the company was housed. Thus,
based on plaintiff’s allegation that the parties agreed that plaintiff would have an interest in the
property, the statute of frauds would apply to bar plaintiff’s claim.
However, plaintiff is correct that defendants failed to list the statute of frauds in its
affirmative defenses filed in response to plaintiff’s original and first amended complaints. “A
party that fails to raise an affirmative defense as required by MCR 2.111(F) waives the defense.”
Harris v Vernier, 242 Mich App 306, 312; 617 NW2d 764 (2000); see also MCR 2.111(F)(3)(a).
Thus, the statute of frauds cannot be invoked as a basis for summary disposition.
However, summary disposition is nonetheless appropriate under MCR 2.116(C)(10). The
trial court granted defendants summary disposition of this claim, and stated at the hearing that the
facts alleged by plaintiff were “too tenuous” and no consideration was shown. This was not in
error. There is no genuine issue of material fact that plaintiff failed to meet his burden of
establishing a valid contract. He stated that there was an oral agreement in which the parties agreed
to purchase the Merriman property and one day split the proceeds in the event of a sale, and that
he forwent a bonus to use the money as a down payment. However, there is no record of this aside
from plaintiff’s statement. Plaintiff’s counsel asserted at oral argument that the parties were to
split the $180,000 down payment, but did not settle on “an exact number” to contribute, and that
the “goal was to leave the money in the company” to use to purchase the building. Thus, there
was no genuine issue of material fact that there was no evidence of consideration for this alleged
agreement, and summary disposition was proper under MCR 2.116(C)(10).
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B. US ICE
Plaintiff argues that the court improperly granted defendants summary disposition of this
claim because he provided evidence that there was an oral agreement for plaintiff to be a 33%
owner, and Don breached the agreement by forming US Ice behind plaintiff’s back and forcing
him out of the business. We disagree.
The Michigan Limited Liability Company Act, MCL 450.4101 et seq., provides:
(1) A person may be admitted as a member of a limited liability company
in connection with the formation of the limited liability company in any of the
following ways:
(a) If an operating agreement includes requirements for admission, by
complying with those requirements.
(b) If an operating agreement does not include requirements for admission,
if either of the following are met:
(i) The person signs the initial operating agreement.
(ii) The person’s status as a member is reflected in the records, tax filings,
or other written statement of the limited liability company.
(c) In any manner established in a written agreement of the members. [MCL
450.4501(1).]
Plaintiff alleged that in the spring or summer of 2018, Don said that he wanted plaintiff to
be involved in US Ice, so they agreed that Don would be a 34% owner, plaintiff would be a 33%
owner, and Don’s son would be the remaining 33%. US Ice was formed in October 2018, and the
US Ice operating agreement lists Don as the sole member. Plaintiff alleged that he received no
financial benefit from US Ice. At the motion hearing on the record, the court stated that there was
a question of fact regarding the agreement to co-own US Ice, and was denying the motion.
However, the court explicitly granted summary disposition in its order, and courts speak through
their written orders and judgments, not their oral pronouncements. In re Contempt of Henry, 282
Mich App 656, 678; 765 NW2d 44 (2009).
Nonetheless, summary disposition was appropriate under MCR 2.116(C)(10). There is no
genuine issue of material fact that plaintiff failed to establish that a contract existed or there was
any consideration. Defense counsel asserted at oral argument that Don used KMI funds to pay for
US Ice equipment, and plaintiff asserted that as an “owner” of KMI, he therefore contributed
consideration toward this alleged agreement for membership in US Ice. As concluded in the
previous two issues, there is no genuine issue of material fact that plaintiff was not a shareholder
or partner in KMI. As such, this reasoning fails. There is no genuine issue of material fact that
plaintiff was not admitted as a member of US Ice as required under MCL 450.4501(1), and
summary disposition of this claim was proper.
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C. KMI
Plaintiff argues that the trial court abused its discretion in granting defendants
reconsideration of the summary disposition order denying summary disposition as to plaintiff’s
breach-of-contract claim in Count IV related to ownership of KMI because genuine issues of
material fact existed that he was a co-owner or shareholder. We disagree.6
MCR 2.119 governs motions for reconsideration, and provides in part:
(3) Generally, and without restricting the discretion of the court, a motion
for rehearing or reconsideration which merely presents the same issues ruled on by
the court, either expressly or by reasonable implication, will not be granted. The
moving party must demonstrate a palpable error by which the court and the parties
have been misled and show that a different disposition of the motion must result
from correction of the error. [MCR 2.119(F)(3).]
In granting defendants reconsideration, the court stated:
In its motion, Defendants set forth arguments that were not considered in
the Court’s prior ruling on the record. Specifically, the Court incorrectly presumed
that Count IV was based upon different allegations than Count I. Indeed, both
Counts are predicated on the same factual allegation:[] that Plaintiff is a shareholder
of [KMI]. Because Defendants have presented different issues that were not
considered by the Court, a different disposition must result from correction of the
error. Thus, because there is no material issue of fact that Plaintiff is not a
shareholder of [KMI], their motion is granted pursuant to MCR 2.119[(F)](3).
This was not an abuse of discretion. This portion of Count IV for breach of contract relied on the
same factual allegations of Count I for shareholder oppression, alleging that plaintiff had some
sort of ownership interest in KMI. Plaintiff stated in Count IV in the first amended complaint that
the parties had an agreement that they were “shareholders,” plaintiff holding a 49% interest and
Don 51%. Based on the trial court’s decision to grant summary disposition in Count I, and the
reasoning provided above to affirm summary disposition of Count I for shareholder oppression,
there is no genuine issue of material fact that plaintiff is not a shareholder, and the trial court
committed a palpable error in its original summary disposition motion in denying this portion of
6
In addition to the standards of review for a motion for summary disposition provided above that
apply here, “[t]his Court reviews for an abuse of discretion a trial court’s decision to grant or deny
a motion for reconsideration.” Shivers v Covenant Healthcare Sys, 339 Mich App 369, 377; 983
NW2d 427 (2021). “An abuse of discretion occurs when the trial court chooses an outcome falling
outside the range of principled outcomes.” Id. at 374 (quotation marks and citation omitted).
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Count IV. Therefore, the trial court did not abuse its discretion in granting defendants
reconsideration, and summary disposition was proper under MCR 2.116(C)(10).7
VIII. RELIEF FROM JUDGMENT OR ODER
Defendants argue in their cross-appeal that the trial court abused its discretion in granting
plaintiff’s motion to reopen the case and enter a final judgment by changing the dismissal of Count
II of defendants’ counterclaim for conversion from “without prejudice” to “with prejudice.” We
disagree.8
After the trial court granted defendants reconsideration regarding Count IV, the only
remaining claim was defendants’ counterclaim Count II for conversion. On November 16, 2021,
the court entered a stipulated order of voluntary dismissal of Count II of defendants’ counterclaim
for conversion, stating that it was “dismissed pursuant to MCR 2.504.” MCR 2.504(A)(2)(b)
provides that “[u]nless the order specifies otherwise, a dismissal under subrule (A)(2) is without
prejudice.” The stipulated order also indicated that it resolved the last pending claim and closed
the case. Defense counsel drafted this order, and plaintiff stipulated to its contents.
However, plaintiff then simultaneously filed a claim of appeal in Docket No. 359509 and
his motion to reopen the case, arguing that the November 16, 2021 stipulated order was ambiguous
whether it was a final order under MCR 7.202(6)(a). Plaintiff asked the trial court to reopen the
case and enter an order of dismissal of Count II with prejudice to clarify that it was a final order.
After this Court dismissed plaintiff’s claim of appeal in Docket No. 359509 for lack of
jurisdiction,9 the trial court entered an order on January 27, 2022, reopening the case and directing
plaintiff to enter final judgment on all claims and counterclaims. On February 7, 2022, the trial
court entered the final order, stating that Count II of KMI’s counterclaim for conversion was
“dismissed WITH PREJUDICE and thus constitutes an adjudication on the merits,” and that the
order resolved all claims and closed the case.
MCR 2.612 provides for relief from judgment as follows:
(A) Clerical Mistakes.
7
Plaintiff also argues that the trial court abused its discretion in denying his motion for
reconsideration of the reconsideration order. This issue was not contained in the statement of
questions presented in plaintiff’s appellant brief on appeal, and is therefore waived. English v Blue
Cross Blue Shield of Mich, 263 Mich App 449, 459; 688 NW2d 523 (2004).
8
A trial court’s decision on a motion for relief from judgment under MCR 2.612 is reviewed for
an abuse of discretion. Peterson v Auto Owners Ins Co, 274 Mich App 407, 412; 733 NW2d 413(2007). This Court reviews de novo the proper interpretation and application of statutes and court
rules. Glasker-Davis, 333 Mich App at 229.
9
Fowler v Keiper, unpublished order of the Court of Appeals, entered January 25, 2022 (Docket
No. 359509).
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(1) Clerical mistakes in judgments, orders, or other parts of the record and
errors arising from oversight or omission may be corrected by the court at any time
on its own initiative or on motion of a party and after notice, if the court orders it.
* * *
(C) Grounds for Relief from Judgment.
(1) On motion and on just terms, the court may relieve a party or the legal
representative of a party from a final judgment, order, or proceeding on the
following grounds:
(a) Mistake, inadvertence, surprise, or excusable neglect.
* * *
(f) Any other reason justifying relief from the operation of the judgment.
Although plaintiff did not cite MCR 2.612 or use the terms “mistake” or “clerical mistake”
in his motion to reopen the case, he asserted that an “ambiguity” existed in the November 16, 2021
stipulated order of dismissal of Count II because it stated that dismissal was under “MCR 2.504,”
which provides that dismissal is without prejudice unless stated otherwise, but also included the
language that it resolved all claims and closed the case, indicating a final order under MCR
7.202(6)(a). Thus, on its face, the order contained a clerical error or mistake. Defense counsel
drafted the proposed order containing this mistake, and plaintiff stipulated to its entry. Defendants
also moved in this Court to dismiss plaintiff’s claim of appeal in Docket No. 359509, arguing that
this Court lacked jurisdiction because the November 16, 2021 order of dismissal was without
prejudice and therefore not a final order. Because the order contained a clerical mistake, the court
had the authority to modify the judgment under MCR 2.612(A)(1) or (C)(1)(a), and did not abuse
its discretion in modifying dismissal of Count II of KMI’s counterclaim from “without prejudice”
to “with prejudice” to correct it.
Affirmed.
/s/ Jane E. Markey
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
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