Kern v. Kern-Koskela
Decision Date | 20 June 2017 |
Docket Number | No. 330183,330183 |
Parties | Frank KERN III, Plaintiff–Appellant/Cross–Appellee, v. Bonnie KERN–KOSKELA, Larry Koskela, Christopher Kelly, Maxitrol Company, and Mertik Maxitrol, Inc, Defendants–Appellees/Cross–Appellants, and David Kall, Michael Latiff, and McDonald Hopkins LLC, Defendants–Appellees. |
Court | Court of Appeal of Michigan — District of US |
Dettmer & Dezsi, PLLC (by Michael R. Dezsi ), for Frank Kern III.
Bowen, Radabaugh & Milton, PC (by Lisa T. Milton ), for Bonnie Kern-Koskela, Larry Koskela, and Christopher Kelly.
McDonald Hopkins PLC (by Michael G. Latiff and Timothy J. Lowe ) for Maxitrol Company.
Maddin Hauser Roth & Heller, PC (by Steven M. Wolock and Harvey R. Heller ), for Michael Latiff and McDonald Hopkins, LLC.
Before: Stephens, P.J., and K. F. Kelly and Murray, JJ.
Plaintiff appeals by right a final order reforming a lease contract. However, several issues on appeal relate to the trial court's prior orders dismissing a number of plaintiff's claims and granting summary disposition. Several defendants cross-appeal the final order, arguing that they were entitled to attorney fees and costs. Finding no error warranting reversal, we affirm.
Plaintiff, Frank Kern III, and his sister, defendant Bonnie Kern–Koskela, both own a 50 percent interest in Maxitrol
and Mertik Maxitrol. Plaintiff, Kern–Koskela, and Kern–Koskela's husband,1 Larry Koskela, compose Maxitrol's board of directors. Kern–Koskela serves as the Board's Chair and as the Executive Vice President and Chief Executive Officer of Maxitrol. Koskela serves as the Board's Vice Chair and as President and Chief Operating Officer of Maxitrol. Defendant Christopher Kelly is Maxitrol's Chief Financial Officer and Vice President of Finance. Defendants David Kall, Michael Latiff, and McDonald Hopkins, LLC, served as counsel for the corporate defendants.
In 2012, plaintiff sued the individual defendants and Kelly for shareholder oppression and breach of fiduciary duty, asserting that Kern–Koskela excluded plaintiff from any control or oversight over the corporations and was mismanaging the businesses so as to enrich herself at the expense of the corporations and plaintiff. Plaintiff alleged myriad types of wrongdoing. For purposes of this appeal, the focus is on a lease agreement between Bates Group, LLC, a company wholly owned by the individual defendants, and Maxitrol
—the so-called M–Annex lease. Plaintiff also made claims against corporate counsel defendants, arguing that they owed a fiduciary duty to him as a shareholder in a closely held corporation and breached that duty by performing legal work for Kern–Koskela at the same time they were serving as corporate counsel for Maxitrol.
The trial court granted corporate counsel summary disposition, finding that there was no fiduciary relationship between plaintiff and corporate counsel. Thereafter, Maxitrol
moved for the appointment of a "disinterested person" pursuant to MCL 450.1495 to investigate whether the continuation of plaintiff's derivative suit was in the best interests of the corporation. The trial court appointed attorney Joel H. Serlin to act as a disinterested person under the act and charged him with investigating whether the continuation of plaintiff's suit was in the best interests of the corporation. Serlin's July 7, 2014 report concluded:
Company (the tenant), are necessary parties to the derivative claim.
sought dismissal solely in reliance on Serlin's report. Kern–Koskela, Koskela, and Kelly joined the motion. Plaintiff responded, in part, by challenging the constitutionality of MCL 450.1495 as a violation of the separation-of-powers doctrine as well as an improper delegation of the trial court's constitutionally mandated function to a nonjudicial court-appointed advisory expert. The trial court indicated that the motion was more properly characterized as a motion to dismiss brought under MCL 450.1495 and rejected plaintiff's constitutional claims. In a written opinion read into the record, the trial court concluded that Serlin's determination was made in good faith after conducting a reasonable investigation. Consequently, MCL 450.1495 required dismissal of those claims that Serlin determined should not proceed. The trial court dismissed with prejudice plaintiff's third amended complaint against Mertik and Kelly. It also dismissed plaintiff's third amended complaint "as to Defendants Bonnie Kern–Koskela, Larry Koskela, and Maxitrol Company—with the exception of Plaintiff's claim ‘related to the M Annex, and the Annex Lease, entered into by and between Bates Group, LLC and Defendant Maxitrol Company’—which may proceed to trial."
The jury found that the lease was unfair to Maxitrol
and that Maxitrol was damaged in the amount of $51,015. The trial court denied a number of postjudgment motions.
Plaintiff raises constitutional challenges to MCL 450.1495. First, he argues that to the extent the statute dictates a procedure for summary disposition, the statute should be declared unconstitutional as a violation of Michigan's separation of powers doctrine, Const. 1963, art. 3, § 2 ; Const. 1963 art. 6, § 1 ; and Const. 1963 art. 6, § 5. Next, plaintiff argues that the statute is also unconstitutional because it commands the judiciary to delegate its constitutionally mandated function and adopt the findings of a nonjudicial court-appointed disinterested person. Finally, plaintiff maintains that, even assuming that the statute is constitutional, the trial court erred by granting summary disposition when there were numerous questions of fact regarding plaintiff's claims for removing Kern–Koskela and Koskela as corporate officers and for an accounting. We reject each of these challenges.
This Court reviews constitutional questions de novo. In re AMAC , 269 Mich.App. 533, 536, 711 N.W.2d 426 (2006). "[A] statute is presumed to be constitutional unless its unconstitutionality is clearly apparent." McDougall v. Schanz , 461 Mich. 15, 24, 597 N.W.2d 148 (1999).
Plaintiff asserts that MCL 450.1495 violates the separation-of-powers doctrine because the statute impermissibly infringes our Supreme Court's exclusive authority under Const. 1963, art. 6, § 5, to promulgate rules governing procedure by providing a procedural mechanism for summary disposition. As observed in McDougall :
This Court need not address plaintiff's constitutional challenge, however, if MCL 450.1495 and MCR 2.116(C)(10) can be construed so as not to conflict. McDougall , 461 Mich. at 24, 597 N.W.2d 148. "When there is no inherent conflict, ‘[w]e are not required to decide whether [the] statute is a legislative attempt to supplant the Court's authority.’ " Id. , quoting People v. Mateo , 453 Mich. 203, 211, 551 N.W.2d 891 (1996) (alterations in McDougall). Moreover, this Court should " ‘not lightly presume that the Legislature intended a conflict, calling into question this Court's authority to control...
To continue reading
Request your trial-
Youmans v. Charter Twp. of Bloomfield
...she fails to recognize that they may nevertheless be considered as "persuasive or instructive" authority.14 Kern v. Kern-Koskela , 320 Mich. App. 212, 241, 905 N.W.2d 453 (2017).In any event, the heart of the parties’ dispute regards the manner in which the rule of law set forth in Trahey s......
-
Haydaw v. Farm Bureau Ins. Co.
...Unpublished opinions are also not binding authority but may be persuasive or instructive. MCR 7.215(C)(1) ; Kern v. Kern-Koskela , 320 Mich. App. 212, 241, 905 N.W.2d 453 (2017). However, unlike the out-of-state caselaw we rely on, the unpublished opinions cited by defendant addressed only ......
-
People v. Miller
...alleging bias, unless the judicial opinion displays a 'deep-seated favoritism or antagonism that would make fair judgment impossible." Id. at 231-232, quoting Armstrong v Ypsilanti Charter Twp, 248 Mich.App. 573, 597; 640 N.W.2d 321 (2001). Here, while the trial court strongly encouraged th......
-
Barkovic v. Zemke
...... issued February 25, 2020 (Docket No. 345493), to be. persuasive and instructive authority in this regard. See. Kern v Kern-Koskela , 320 Mich.App. 212, 241; 905. N.W.2d 453 (2017). . . . [ 4 ] "Caselaw from sister states and. federal ......