Huron City Company v. Charles Abram Parcells III

STATE OF MICHIGAN

COURT OF APPEALS

HURON CITY COMPANY, UNPUBLISHED

February 8, 2018

Plaintiff-Counter Defendant-

Appellee,

v No. 335978

Huron Circuit Court

CHARLES ABRAM PARCELLS, III and DAVID LC No. 12-105093-CZ

HAMILTON PARCELLS,

Defendants-Counter Plaintiffs-Third

Party Plaintiffs-Appellants,

and

DIANE STEWART, HENRY STEWART,

BENJAMIN STEWART, JOSHUA STEWART,

WALTER WAGONER, LYNDA BOGEL, JEFF

PARCELLS, GRETCHEN MADISON, STEVE

PARCELLS, NATHAN PARCELLS, and

MATTHEW PARCELLS,

Third Party Defendants.1

Before: RONAYNE KRAUSE, P.J., and FORT HOOD and O’BRIEN, JJ.

PER CURIAM.

Defendants-Counter Plaintiffs-Third Party Plaintiffs (Defendants) appeal as of right the

trial court’s order dismissing the remaining claims in their second amended counter-complaint,

1

Defendants-Counter Plaintiffs-Third Party Plaintiffs (Defendants) filed an amended counter

complaint on March 13, 2014, in which they added the listed third-party defendants to this

action. On May 15, 2014, the trial court entered an order striking the third-party defendants from

the case because they were not properly added. Defendants subsequently filed a motion to add

the third-party defendants as necessary parties, which the trial court denied. As a result, the

third-party defendants did not participate in this case at trial or on appeal.

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effectively closing the case. However, the issues raised by defendants relate to earlier rulings.

The first issue relates to the trial court’s order dismissing defendants’ claim that plaintiff-counter

defendant (plaintiff) breached its Articles of Incorporation and the trial court’s order denying

defendants’ motion for reconsideration of that order. The second issue relates to the trial court’s

order granting plaintiff’s motion for summary disposition under MCR 2.116(C)(8) and

dismissing defendants’ claims of self-dealing, misappropriation of corporate opportunities, and

waste of corporate assets. We affirm.

This case arises from an ongoing dispute between plaintiff, a closely held corporation

whose shareholders are all extended family members, and defendants, who are shareholders of

plaintiff. Plaintiff owns a 1400 acre parcel of real property and, through a limited liability

company owned solely by plaintiff, leases various portions of the property to private individuals

and entities. This case began when plaintiff brought a complaint against defendants alleging that

defendants were harassing and intimidating guests that were leasing plaintiff’s land. That

complaint was eventually settled after a case evaluation. Pertinent to this appeal, defendants

filed a second amended counter-complaint 2 that raised nine counts, including “self dealing with

the corporation (MCL 450.1545a),” “misappropriation of corporate opportunities,” “waste of

corporate assets,” and “breach of articles of incorporation.” Relevant to this appeal, defendants’

claim for breach of the articles of incorporation alleged that plaintiff was violating Article XI

Section E (Article XI(E)) of its Articles of Incorporation by leasing company property because

Article XI(E) required an 80% supermajority vote before plaintiff could lease land. In pertinent

part, the text of Article XI(E) provides as follows:

The affirmative vote of holders of eighty percent (80%) of the shares in

attendance, either in person, by proxy or by teleconference of other electronic

means, at a validly called meeting of the shareholders at which a quorum is

present, shall be necessary for the following corporate action:

* * *

(E) Sale, long-term lease or exchange of the property or assets of the

corporation with a value in excess of Fifty Thousand Dollars ($50,000.00) in any

calendar year or the disposition of any real property.

Defendants conceded that the first part of Article XI(E) was inapplicable, but argued that a lease

constituted a “disposition of any real property.”

2

Defendants originally filed their counter-complaint in March 2014. This complaint was later

amended, and the amended complaint impermissibly added third-party defendants. Rather than

dismissing defendants’ counter-complaint and forcing defendants to refile, the trial court decided

to strike defendants’ amended counter-complaint and allow them to file a second amended

counter-complaint, which led to the filing of the second amended counter-complaint now at

issue.

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Plaintiff filed a motion for summary disposition, arguing that its leasing of its property

did not violate Article XI(E). After hearing oral arguments on the issue, the trial court held that a

disposition of real property encompassed only a permanent transfer of real property, and did not

include a lease. Accordingly, the trial court dismissed defendants’ claim that plaintiff breached

its Articles of Incorporation. Defendants filed a motion for reconsideration, which the trial court

denied. In its ruling, the trial court reiterated that, to trigger the supermajority requirement in

Article XI(E), there needed to be a “permanent transfer” of real property, and because a lease

was not a permanent transfer, Article XI(E) was inapplicable. Defendants filed leave to appeal

the trial court’s decision to this Court, which was denied. Huron City Company v Parcells,

unpublished order of the Court of Appeals, issued October 7, 2015 (Docket No. 327988).

Defendants then sought leave to appeal to the Michigan Supreme Court, which was also denied.

Huron City Company v Parcells, 499 Mich 916 (2016).

Afterwards, plaintiff brought a motion for summary disposition in the trial court pursuant

to MCR 2.116(C)(8) for defendants’ claims of self-dealing, misappropriation of corporate

opportunities, and waste of corporate assets. In the motion, plaintiff contended that each count

was a derivative claim and that defendants had not taken the proper steps for commencing a

derivative proceeding. Specifically, plaintiff asserted that defendants did not state in their

pleadings that they complied with, and in fact failed to comply with, the requirements of MCL

450.1493a, which required defendants to file a written demand to plaintiff to take “suitable

action” and then wait 90 days before commencing the derivative proceedings. Plaintiff

contended that, because defendants’ claims were derivative and defendants had failed to

commence a derivative proceeding, defendants lacked standing to file their derivative claims. In

response, defendants argued that plaintiff’s claim was more properly classified as a motion under

MCR 2.116(C)(5) (party asserting claim lacks capacity to sue) and, even if the claim was proper

under MCR 2.116(C)(8), plaintiff had waived this defense by not raising it in its responsive

pleading.

After hearing oral argument, the trial court found that defendants’ claims of self-dealing,

misappropriation of corporate opportunities, and waste of corporate assets were all derivative

claims. The trial court held that, as derivative claims, they must be brought in the name of the

corporation in a derivative proceeding, and that defendants had failed to state that they took the

proper steps to commence a derivative proceeding. The trial court concluded that defendants, as

shareholders not acting on behalf of the corporation, were not the proper party in interest and,

therefore, lacked standing to bring these derivative claims. The trial court also noted that

plaintiff had not waived its challenge to defendants’ standing because issues of justiciability

could be raised at any stage in the proceeding and may not be waived by the parties. Two weeks

after the trial court issued this ruling, the parties stipulated to dismiss defendants’ remaining

claims against plaintiff, and the trial court entered an order to that effect.

On appeal, defendants first argue that the trial court erred by denying their motion for

reconsideration because it incorrectly held that a lease is not included within the meaning of

“disposition of any real property.” We disagree. “We review a trial court’s decision on a motion

for reconsideration for an abuse of discretion.” Frankenmuth Ins Co v Poll, 311 Mich App 442,

445; 875 NW2d 250 (2015). “An abuse of discretion occurs when the trial court’s decision falls

outside the range of reasonable and principled outcomes.” Woodington v Shokoohi, 288 Mich

App 352, 355; 792 NW2d 63 (2010). “[Q]uestions involving the proper interpretation of a

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contract or the legal effect of a contractual clause are . . . reviewed de novo.” Rory v Continental

Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005).

When considering a motion for reconsideration, “[i]n order to establish the right to relief,

the party bringing the motion . . . must establish that the trial court made a palpable error and a

different disposition would result from correction of the error.” Huntington Nat’l Bank v Daniel

J. Aronoff Living Trust, 305 Mich App 496, 516; 853 NW2d 481 (2014). As previously stated,

Article XI(E) states in pertinent part as follows:

The affirmative vote of holders of eighty percent (80%) of the shares in

attendance, either in person, by proxy or by teleconference of other electronic

means, at a validly called meeting of the shareholders at which a quorum is

present, shall be necessary for the following corporate action:

* * *

(E) Sale, long-term lease or exchange of the property or assets of the

corporation with a value in excess of Fifty Thousand Dollars ($50,000.00) in any

calendar year or the disposition of any real property. [Emphasis added.]

Defendants do not assert that the first portion of Article XI(E) was triggered by plaintiff’s

short-term leasing of its property. Rather, defendants only contend that the trial court erred by

concluding that the phrase “disposition of any real property” required that there be a “permanent

transfer” of the property.

Plaintiff’s Articles of Incorporation do not define “disposition,” so it is appropriate to

look to a dictionary to ascertain the plain and ordinary meaning of the term. See Coates v

Bastian Bros, Inc, 276 Mich App 498, 504; 741 NW2d 539 (2007). Random House Webster’s

College Dictionary (1997) lists a variety of definitions for “disposition,” but the only definitions

that are pertinent as the term is used in Article XI(E) are “final settlement of a matter” and

“bestowal as by gift or sale.” See Feyz v Mercy Mem Hosp, 475 Mich 663, 685 n 62; 719 NW2d

1 (2006) (“[B]ecause a word can have many different meanings depending on the context in

which it is used, and because dictionaries frequently contain multiple definitions of a given word,

in light of this fact, it is important to determine the most pertinent definition of a word in light of

its context.”). Based on these definitions of “disposition,” both of which indicate finality,

conclude that the trial court did not err by ruling that the “disposition of any property” as used in

Article XI(E) was only applicable to permanent transfers of property. See In re Kostin, 278

Mich App 47, 54; 748 NW2d 583 (2008) (concluding that “disposition” was defined as the “final

settlement of a matter” or “bestowal, as by gift or sale”).3

3

Defendants argue that the Kostin panel’s conclusion is not applicable to this case because that

panel’s conclusion was based on different facts. The Kostin panel relied upon Random House

Webster’s College Dictionary (2001) for defining “disposition,” and that dictionary lists multiple

definitions of the word. While we recognize that we are presented with a different set of facts

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Defendants urge this Court to look to Black’s Law Dictionary (10th ed) for the definition

of “disposition,” which provides as follows:

1. The act of transferring something to another’s care or possession, esp.

by deed or will; the relinquishing of property <a testamentary disposition of all

the assets>.

2. A final settlement or determination <the court’s disposition of the

case>.

* * *

3. Temperament or character; personal makeup <a surly disposition>.

Defendants contend that “disposition” should be defined using only the first part of the first

definition: “The act of transferring something to another’s care or possession.” However,

contrary to defendants’ contention, the semicolon in the first definition was not intended to

signal a wholly separate definition, nor was it intended to indicate that the two clauses were

“mutually exclusive.” The first definition was clearly intended to be taken as a whole;

otherwise, the two clauses would have been numbered separately like the other definitions.

Because the second part of Black’s definition is “the relinquishing of property,” the trial court

correctly looked to the dictionary definition of “relinquish,” which is a verb that means “to

renounce or surrender (a possession, right, claim, etc.).” Random House Webster’s College

Dictionary (1997).4 Thus, like the definition from Random House Webster’s College Dictionary,

Black’s Law Dictionary’s definition of “disposition” in the context of transferring property

indicates a final, rather than temporary, act. This conclusion is also in line with the qualifier in

the first part of the Black’s definition, “esp. by deed or will,” both of which indicate finality of

the transfer. Accordingly, the trial court properly determined that a lease did not constitute a

“disposition of any real property” in the context of Article XI(E), and it did not subsequently

abuse its discretion by denying defendants’ motion for reconsideration of the issue.

Next, defendants argue that the trial court erred by granting plaintiff’s motion for

summary disposition and dismissing defendants’ claims of self-dealing, misappropriation of

than the Kostin panel, we nonetheless find that the definitions of “disposition” that were relevant

to that case are equally relevant to the case before us. Moreover, defendants do not point to a

different definition from the Random House dictionary that is better suited for the facts of this

case. Instead, as will be discussed more fully, defendants rely on a different dictionary’s

definition. Therefore, defendants’ argument that Kostin’s definition of “disposition” is not

relevant to this case is unconvincing.

4

Black’s Law Dictionary (10th ed) defines “relinquish” as “[t]he abandonment of a right or

thing,” and it defines “abandonment” as “[t]he relinquishing of a right or interest with the

intention of never reclaiming it.” Thus, although these definitions are circular, Black’s definition

of “relinquish” indicates a permanent transfer, which supports the trial court’s conclusion.

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corporate opportunities, and waste of corporate assets. We disagree. “We review de novo a trial

court’s grant of summary disposition.” Innovation Ventures v Liquid Mfg, 499 Mich 491, 506;

885 NW2d 861 (2016). As explained by our Supreme Court in Maiden v Rozwood, 461 Mich

109, 119-120; 597 NW2d 817 (1999),

A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint.

All well-pleaded factual allegations are accepted as true and construed in a light

most favorable to the nonmovant. A motion under MCR 2.116(C)(8) may be

granted only where the claims alleged are so clearly unenforceable as a matter of

law that no factual development could possibly justify recovery. When deciding a

motion brought under this section, a court considers only the pleadings.

[Citations and quotation marks omitted.]

Whether a plaintiff has standing is a question of law, which is reviewed de novo. Crawford v

Dep’t of Civil Serv, 466 Mich 250, 255; 645 NW2d 6 (2002).

Defendants first argue that the trial court erred by concluding that plaintiff did not waive

its challenge to defendants’ standing because plaintiff did not raise the defense in its responsive

pleading. Contrary to defendants’ assertion, it is error for a court to summarily conclude,

without further analysis, that a party must raise a defense in its first responsive pleading or the

defense is waived. See Leite v Dow Chem Co, 439 Mich 920 (1992) (“The Court of Appeals

erred when it interpreted MCR 2.116(D)(2) and MCR 2.111(F)(3) as though they required that

the defendants’ affirmative defense be raised in their first responsive pleading or be waived.”).

Instead, the court must look to when the defense may be raised under MCR 2.116(D). Id. The

issue of standing, or “the real-party-in-interest defense,” is properly raised in a motion under

MCR 2.116(C)(8) or (10), “depending on the pleadings or other circumstances of the particular

case.” Id. As such, whether a party has standing can be raised at any time. See MCR

2.116(D)(4) (stating that a motion under MCR 2.116(C)(8) and (10) “may be raised at any time”

unless otherwise specified); 46th Circuit Trial Court v Crawford Co, 266 Mich App 150, 177-

178; 702 NW2d 588 (2005), rev’d on other grounds 476 Mich 131 (2006) (stating that a

challenge to standing that is raised under MCR 2.116(C)(8) “can be raised at any time”).

Therefore, plaintiff did not waive its challenge to whether defendants lacked standing by not

raising the issue in its responsive pleadings because it could raise the issue at any time.

The relevant inquiry then becomes whether the trial court correctly determined that

defendants lacked standing. Defendants do not contest on appeal that the trial court properly

determined that its claims of self-dealing, misappropriation of corporate opportunities, and waste

of corporate assets were derivative claims. In a proceeding addressing derivative claims, “[a]ny

recovery runs in favor of the corporation, for the shareholders do not sue in their own right.”

Futernick v Statler Builders, Inc, 365 Mich 378, 386; 112 NW2d 458 (1961). “In general, a suit

to enforce corporate rights or to redress or prevent injury to the corporation, whether arising out

of contract or tort, must be brought in the name of the corporation and not that of a stockholder,

officer or employee.” Mich Nat’l Bank v Mudgett, 178 Mich App 677, 679; 444 NW2d 534

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(1989).5 Therefore, the real party in interest for a derivative claim is the corporation, and a

shareholder must commence a derivative proceeding on behalf of the corporation; otherwise, the

shareholder lacks standing to bring the derivative claim. See id. at 680 (“[W]here the alleged

injury to the individual results only from the injury to the corporation, the injury is merely

derivative and the individual does not have a right of action against the third party.”); MCR

2.201(C) (stating that “[a]n action must be prosecuted in the name of the real party in interest”)

Pursuant to MCL 450.1492a, for a shareholder to be eligible to commence a derivative

proceeding, the shareholder must satisfy the following criteria:

A shareholder may not commence or maintain a derivative proceeding unless the

shareholder meets all of the following criteria:

(a) The shareholder was a shareholder of the corporation at the time of the

act or omission complained of or became a shareholder through transfer by

operation of law from one who was a shareholder at that time.

(b) The shareholder fairly and adequately represents the interests of the

corporation in enforcing the right of the corporation.

(c) The shareholder continues to be a shareholder until the time of

judgment, unless the failure to continue to be a shareholder is the result of

corporate action in which the former shareholder did not acquiesce and the

derivative proceeding was commenced prior to the termination of the former

shareholder's status as a shareholder.

There is no doubt that defendants were shareholders eligible to commence derivative

proceedings against plaintiff. But, pursuant to MCL 450.1493a, there are prerequisites for

commencing a derivative action, which are as follows:

A shareholder may not commence a derivative proceeding until all of the

following have occurred:

(a) A written demand has been made upon the corporation to take suitable

action.

(b) Ninety days have expired from the date the demand was made unless

the shareholder has earlier been notified that the demand has been rejected by the

corporation or unless irreparable injury to the corporation would result by waiting

for the expiration of the 90-day period.

5

This Court in Mich Nat’l Bank, 178 Mich App at 679, recognized that there were circumstances

in which the “general rule” regarding who could pursue a derivative suit “is inapplicable,” such

as “where the individual shows a violation of a duty owed to him directly.” On appeal,

defendants do not contend that any exception applies, so we do not address any.

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In this case, because plaintiff filed its motion for summary disposition under MCR

2.116(C)(8), we only consider the pleadings. See Rozwood, 461 Mich at 119-120. Defendants

did not plead that they filed a written demand to plaintiff to take suitable action. See MCL

450.1493a(a). This is also in violation of MCR 3.502(A), which provides that

[i]n an action brought by one or more shareholders in an incorporated or

unincorporated association because the association has refused or failed to enforce

rights which may properly be asserted by it, the complaint shall set forth under

oath and with particularity the efforts of the plaintiff to secure from the managing

directors or trustees the action the plaintiff desires and the reasons for the failure

to obtain such action, or the reasons for not making such an effort.

Accordingly, based on the pleadings, defendants failed to state that they were commencing

derivative proceedings.

However, Michigan Courts have recognized that the written demand requirement is not

necessary if the shareholder provides proof that the demand would be futile. See Futernick, 365

Mich at 387 (stating that “[t]he minimum requirements for” a derivative proceeding include

either a “demand on said board by the stockholder for such action or proof that the demand

would be useless”). But even in spite of this futility exception to the written demand

requirement, defendants still failed to plead that they were commencing a derivative proceeding

because they did not plead that a demand would have been futile. While defendants point out

that they asserted at the hearing on plaintiff’s motion for summary disposition that a demand

would have been futile, defendants never requested to amend their complaint to reflect this

assertion, despite the fact that the court rules governing summary disposition permit amendment

when a motion is granted for failure to state a claim. See MCR 2.116(I)(5). As such, based on

the pleadings, defendants failed to state that they had filed a written demand or that a written

demand would have been futile, thus failing to satisfy the requirements of MCL 450.1493a.

Therefore, defendants’ claims were facially deficient; defendants were attempting to improperly

raise derivative claims on behalf of themselves, as shareholders, rather than on behalf of the

corporation, who was the real party in interest. See Mich Nat’l Bank, 178 Mich App at 680;

MCR 2.201(C). Accordingly, the trial court properly granted plaintiff’s motion for summary

disposition under MCR 2.116(C)(8) because defendants, as shareholders acting on behalf of

themselves, lacked standing to pursue the derivative claims against plaintiff.6

6

Defendants claim that they satisfied the demand requirement through certain e-mails that they

sent to plaintiff prior to commencing this action. However, in a motion brought under MCR

2.116(C)(8), only the pleadings are to be considered, Rozwood, 461 Mich at 119-120, and

defendants did not reference these e-mails in their pleadings. Regardless, we have reviewed the

e-mails, and they clearly do not satisfy the written demand requirement. They pertain to

accounting and suggested actions for plaintiff to take. The e-mails do not contain any demands

for “the corporation to take suitable action” as required by MCL 450.1493a. In fact, the e-mails

do not contain any demands at all. Moreover, the suggested actions in the e-mails do not pertain

to any of the claims brought by defendants. To the extent that they do relate to those claims, if at

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Affirmed.

/s/ Amy Ronayne Krause

/s/ Karen M. Fort Hood

/s/ Colleen A. O'Brien

all, the relationship is tangential at best. Accordingly, even were we to consider the e-mails, we

would find that they did not satisfy the demand requirement in MCL 450.1493a.

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