KENNETH A KOSOWSKI V ANDREW J HALIW III
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STATE OF MICHIGAN
COURT OF APPEALS
KENNETH A. KOSOWSKI,
UNPUBLISHED
January 5, 1999
Plaintiff-Appellant,
v
ANDREW J. HALIW, III, HALIW, SICILIANO &
MYCHALOWYCH, P.C., DENNIS MAKOWSKI
and MARLENE MAKOWSKI, Jointly and Severally,
No. 203419
Oakland Circuit Court
LC No. 94-489194 NM
Defendants-Appellees.
Before: Kelly, P.J., and Hood and Markey, JJ.
PER CURIAM.
Plaintiff appeals by right the trial court’s order granting defendants’ motion for summary
disposition pursuant to MCR 2.116(C)(8). We affirm in part, reverse in part, and remand for further
proceedings.
In 1987, defendant Dennis Makowski was convicted of racketeering in the distribution of
narcotics and was forbidden to be employed for five years by any business that participated in
Medicaid. Plaintiff was aware of Dennis Makowski’s conviction. During this time, defendant Andrew
Haliw had an attorney-client relationship with defendants Marlene and Dennis Makowski and plaintiff
Kenneth Kosowski. In August 1985, Haliw organized IDC Pharmacy, Inc, a corporation, with plaintiff
as its only shareholder. The corporation performed no business operations until it acquired a franchise
for operating a home infusion franchise through O.P.T.I.O.N Care, Inc. in February 1990. At that time,
IDC issued stock to plaintiff, defendant Marlene Makowski, defendant Dennis Makowski (as de facto
shareholder with or in the shoes of Marlene Makowski), and a third person. Dennis Makowski,
allegedly at the recommendation of Haliw, was employed by the corporation to run its third-party payor
billing, including billings to Medicare and Medicaid. Subsequently, Dennis pleaded guilty to a criminal
charge of submitting a false claim to the State of Michigan’s Medicaid program, and the corporation
was prosecuted for Dennis’ actions.
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Plaintiff filed the instant complaint claiming breach of fiduciary duties, professional negligence
(conflict of interest), breach of fiduciary duties (fraud), conspiracy/concerted action, failure to supervise,
respondeat superior; and fraudulent nondisclosure. Plaintiff alleged that defendants’ actions caused a
diminution of value to his stock, forced him to purchase various assets from IDC, caused him to incur
legal fees, and caused him to suffer extreme emotional distress.
Defendants filed motions for summary disposition pursuant to MCR 2.116(C)(8) and (10)
arguing that plaintiff did not have standing to bring suit. The trial court granted defendants’ motions for
summary disposition, ruling that plaintiff could not maintain the action in his individual capacity as the
injuries he alleged were merely incidental to the alleged injuries that the corporation suffered. Plaintiff
filed a motion for reconsideration that the trial court denied.
On appeal, plaintiff first argues that the trial court erred in denying his motion for
reconsideration/rehearing because he has standing to bring the causes of actions listed in his complaint.
This Court reviews a trial court’s decision to deny a motion for reconsideration for an abuse of
discretion. In re Beglinger Trust, 221 Mich App 273, 279; 561 NW2d 130 (1997). Pursuant to
MCR 2.119(F)(3), a motion for reconsideration must demonstrate a “palpable error” that misled the
court and the parties. A motion that merely presents the same issue as ruled on by the court, either
expressly or by reasonable implication, will not be granted. Cason v Auto Owners Ins Co, 181 Mich
App 600, 605; 450 NW2d 6 (1989). We review de novo a motion for summary disposition based
upon the plaintiff’s failure to state a claim upon which relief may be granted. Beaty v Hertzberg &
Golden, PC, 456 Mich 247, 253; 571 NW2d 716 (1997). In reviewing the grant of a motion for
summary disposition under MCR 2.116(C)(8), we look to the pleadings, accept as true all factual
allegations and their reasonable inferences, and uphold the grant where no factual development could
possibly justify a right of recovery. ETT Ambulance Service Corp v Rockford Ambulance, Inc, 204
Mich App 392, 395-396; 516 NW2d 498 (1994).
An action must be prosecuted in the name of the real party in interest. MCR 2.201(B). “A real
party in interest is one who is vested with the right of action on a given claim, although the beneficial
interest may be in another.” Environair, Inc v Steelcase, Inc, 190 Mich App 289, 292; 475 NW2d
366 (1991). The general rule is that a lawsuit to enforce corporate rights or to redress or prevent injury
to the corporation, whether arising out of contract or tort, cannot be brought in the name of a
stockholder but must be brought in the name of the corporation. Michigan National Bank v Mudgett,
178 Mich App 677, 679; 444 NW2d 534 (1989). We note, however, that
[t]he general rule is inapplicable where the individual shows a violation of a duty owed
directly to him. This exception does not arise, however, merely because the acts
complained of resulted in damage both to the corporation and to the individual, but is
limited to cases where the wrong done amounts to a breach of duty owed to the
individual personally. Thus, where 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. [Id. at 679-680.]
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We find that plaintiff, as an individual shareholder, does not have an action for redress of injuries
to the corporation.1 Although plaintiff argues that he falls within the exception to the general rule and
defendants owed a duty to him, the exception does not arise for the majority of his claims because the
acts complained of resulted in damage both to the corporation and to him. The exception does apply,
however, to plaintiff’s legal malpractice claims against defendants Haliw and Haliw’s law firm given that
the existence of an attorney-client relationship between plaintiff and Haliw predated the present
corporation’s creation.
Other than those damages traceable to legal malpractice, plaintiff’s damages were not separate
and distinct from the injuries that the other shareholders suffered. Clearly, the diminution in value of the
stock was insufficient direct harm to give plaintiff standing to sue in his own right. See Gaff v Federal
Deposit Ins Corp, 814 F2d 311, 315 (CA 6, 1987); Warren v Manufacturers Nat Bank, 759 F2d
542, 544-545 (CA 6, 1985), mod 933 F2d 400 (1991) (alleged acts of fraud were not directed at the
plaintiff as a corporate employee but were directed at the corporation as a business entity; the fact that
the employee lost his job in the corporate bankruptcy is insufficient to establish a direct harm peculiar to
the plaintiff, so plaintiff had no standing to sue for the fraud).
But for Dennis Makowski’s submission of false claims to the Medicaid program on behalf of the
corporation, the corporation would still be viable and plaintiff would not have been forced to purchase
IDC’s assets. In addition, plaintiff would not have had to pay either the corporation’s or his own legal
fees if the corporation had not been sued as a result of the Medicaid fraud that Dennis Makowski
committed. Even accepting plaintiff’s well-pled allegations as true, he has not established that the
money he expended in legal fees or the emotional distress he felt was unique to him or that it was due to
the breach of a duty owed to him, not to the corporation, i.e., the raid and the criminal prosecution were
stressful, embarrassing and expensive for all the shareholders. Put simply, Dennis Makowski was
employed by IDC, not by plaintiff, and but for plaintiff’s and Makowskis’ business relationship as
shareholders of the corporation, plaintiff would have suffered no damages. Indeed, plaintiff does not
claim that he was ever personally sanctioned for employing Dennis at IDC or that he lost his
pharmacist’s license due to his involvement with Dennis or IDC. Therefore, plaintiff’s injuries are at the
most derivative, see MCL 450.1489; MSA 21.200(489), MCL 450.1491a; MSA 21.200(491a), and
MCL 450.1493a; MSA 21.200(493a), and he does not have an individual right of action against
defendants for the diminution of the value of his stock, his forced purchase of various assets of IDC (a
fact that is only mentioned in passing but not explained in any detail)2, his payment of legal fees
(presumably to defend the corporation), and his emotional distress.
We believe, however, that plaintiff has standing to bring his legal malpractice claims against
defendants Andrew J. Haliw and Haliw, Siciliano & Mychalowych, P.C. To establish legal malpractice,
the plaintiff must prove the existence of an attorney-client relationship, the acts constituting negligence,
the proximate cause between the negligence and the alleged injuries, and the fact as well as the extent of
any injuries. Scott v Green, 140 Mich App 384, 399; 364 NW2d 709 (1985). Plaintiff alleged that
Haliw’s legal malpractice consisted of (1) failing to disclose that Dennis Makowski was not permitted to
be employed by a company such as IDC, (2) failing to disclose facts from which plaintiff would have
determined that it would be unwise to permit Dennis Makowski to have any connection with IDC, (3)
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representing plaintiff when a conflict existed between his representation of plaintiff, IDC, and the
Makowskis, and not advising plaintiff regarding the conflicts arising out of multiple representations, and
(4) breaching his duties that caused plaintiff to enter into transactions that he would not have otherwise
entered into or would have entered only upon much more favorable terms.
Upon reviewing the pleadings, we find that plaintiff’s allegations establish the existence of an
attorney-client relationship between plaintiff and defendants that is separate and distinct from defendant
Haliw’s actions with respect to IDC’s home infusion service which are the genesis of plaintiff’s
malpractice claims. MCL 450.1493a; MSA 21.200(493a). Plaintiff apparently sought and first
obtained defendant Haliw’s legal advice in 1985 in order to establish IDC as a “shell” corporation with
plaintiff as its sole shareholder. An attorney-client relationship therefore existed before IDC became
involved in the home-infusion business and before the Makowskis became involved in the corporation.
That independent attorney-client relationship existed apart from their subsequent involvement with IDC.
Indeed, the fact that that defendant Haliw allegedly represented all the parties to the IDC home-infusion
shareholder’s agreement does not dilute this attorney-client relationship between plaintiff and
defendants. Thus, summary disposition under MCR 2.116(C)(8) was inappropriate regarding
defendant’s legal malpractice claims because plaintiff has stated claims upon which relief may be
granted, and he has standing to bring those claims.
Next, plaintiff argues on appeal that he should have been allowed to amend his complaint in the
event the court found his action to be wholly derivative. In order for plaintiff to bring a derivative claim,
however, MCL 450.1493a; MSA 21.200(493a) requires that:
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.
Plaintiff did not address the requirements found in MCL 450.1493a; MSA 21.200(493a) in either his
motion for reconsideration or in his appellate brief. Rather, plaintiff argues on appeal that defendants
would not be surprised by the additional party because it did not add any additional claims and
defendants would not be unfairly prejudiced. We find that the trial court did not abuse its discretion in
finding that the proposed amendment would be futile because plaintiff failed to make any argument or
present any evidence to the contrary. See, generally, Weymers v Khera, 454 Mich 639, 654; 563
NW2d 647 (1997).
Finally, plaintiff argues that defendants should have been barred from asserting the defense of
plaintiff’s lack of standing because this defense was not pleaded affirmatively and defendants did not
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move to amend their responsive pleadings to assert it. The Michigan Supreme Court in Leite v Dow
Chemical Co, 439 Mich 920; 478 NW2d 892 (1992), resolved this issue contrary to plaintiff’s
position, however. In Leite, supra, the Supreme Court, in lieu of granting leave to appeal, vacated the
judgment of this Court and held that this Court had erred when it interpreted MCR 2.116(D)(2) and
MCR 2.111(F)(3) to require the defendant’s affirmative defense that the plaintiffs were not the real
parties in interest be raised in their first responsive pleading. Rather, our Supreme Court held that the
defense that the plaintiffs were not and never were persons who possessed a cause of action against
them, could properly be raised in a MCR 2.116(C)(8) or MCR 2.116(C)(10) motion. Id. at 920.
Although plaintiff argues that Leite is not binding because it is an order and not an opinion, the
Supreme Court’s peremptory orders are binding precedent when they can be understood. See People
v Edgett, 220 Mich App 686, 693, n 6; 560 NW2d 360 (1996). The Supreme Court was clear when
it stated in its order:
Further, MCR 2.116(D)(3) permits certain other defenses to be raised at any time. The
defense presented by the defendants in this case (a claim that the plaintiffs were not the
real parties in interest) was properly raised by motion. MCR 2.11(F)(2), 2.116(D)(3).
***
A motion based on such a defense [lack of standing] would be within MCR
2.116(C)(8) or MCR 2.116(C)(10), depending on the pleadings or other
circumstances of the particular case. [Leite, supra.]
Therefore, Leite is binding and defendants were not barred from asserting the defense of lack of
standing for the first time in their motion for summary disposition pursuant to MCR 2.116(C)(8) or
MCR 2.116(C)(10).
We affirm in part, reverse in part, and remand for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Michael J. Kelly
/s/ Harold Hood
/s/ Jane E. Markey
1
Plaintiff would have this Court establish a new rule of law: that is, in a closely-held corporation, if a
group of shareholders act inappropriately as shareholders of the corporation and cause one other
innocent shareholder to suffer the consequences of their inappropriate or illegal behavior, then the
innocent shareholder can seek damages from the offending shareholders in a non-derivative action.
Unfortunately, plaintiff fails to present this Court with case law or statutory authority to support the
creation of this new rule of law.
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2
For example, we find nothing compelling about plaintiff’s decision to purchase corporate assets
assuming that plaintiff could use these in his continuing pharmaceutical practice. Plaintiff also fails to
explain why he was “forced” to purchase the assets.
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