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STATE OF MICHIGAN
COURT OF APPEALS


MARK WOJCIK and MARJORIE WOJCIK, Plaintiffs/Counter-DefendantsAppellants, v WILLIAM J MCNISH and MCNISH'S SPORTING GOODS & TROPHIES INC, Defendants/ Counter-PlainitffsAppellees.

UNPUBLISHED July 25, 2006

No. 267005 Oakland Circuit Court LC No. 2003-052644

Before: Kelly, PJ, and Markey and Meter, JJ. PER CURIAM. In 1982, Mark Wojcik ("plaintiff" or "Wojcik")1 and William J. McNish ("defendant" or "McNish") formed the defendant McNish Sporting Goods and Trophies, Inc. (the "company" or the "corporation"). The business relationship between plaintiff and defendant soured after defendant, the majority stockholder in the company, insisted that his son-in-law, Christian Beaudoin ("Beaudoin"), participate in the business. Plaintiff claims that elevating Beaudoin to company management forced him to resign as day-to-day manager of the company, and that subsequently, defendants refused to buy his stock contrary to the parties' agreement to form the corporation. The trial court granted defendants' motion for summary disposition. Plaintiffs appeal by right. We affirm in part, reverse in part, and remand for further proceedings. I Plaintiffs originally filed an eight-count complaint, which grew to nine counts in plaintiffs' first amended complaint. Plaintiffs alleged defendants breached fiduciary duties, engaged in actionable oppressive conduct under MCL 450.1489, breached employment contracts and a stock purchase agreement, wrongfully terminated or constructively discharged plaintiff,

The singular "plaintiff" refers only to plaintiff Mark Wojcik unless otherwise specified. The factual and legal bases of plaintiff Marjorie Wojcik's claims are so inadequately briefed that they are deemed abandoned. Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999).

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discriminated because of age, and owed money damages in a corporate "derivative" claim. Plaintiffs also sought declaratory and injunctive. After discovery was completed, defendants moved for summary disposition. Plaintiffs filed a response brief and also moved for summary disposition. The trial court heard arguments of counsel at the conclusion of which the trial court took the matter under advisement. The trial court issued its opinion and order granting defendants' motion for summary disposition on January 31, 2005. The court ruled that plaintiffs' minority oppression claim failed because it lacked evidentiary support that defendants engaged in "a continuing course of conduct or a significant action or series of actions that substantially interferes with the interests of a shareholder as a shareholder." MCL 450.1489. The court granted defendants summary disposition on plaintiff's age discrimination claim because plaintiff had not established that he had suffered an adverse employment action. The court determined that at best plaintiff had established only nepotism, which was not actionable under either state or federal law. Regarding plaintiff's contract claims, the court ruled without further explanation, "that no questions of fact exist and Defendants' motion as to claims relating to the written agreement is granted." The trial court opined with respect to the stock purchase agreement, "that there is no evidence that the parties ever reached an agreement on the essential terms and even if such an agreement existed, Wojcik repudiated it when he stated that he would not abide by the agreement without a guaranty from McNish." Thus, the court concluded that because plaintiff repudiated the agreement, defendants were entitled to treat the agreement as terminated. After the trial court issued its ruling, plaintiffs believed that some counts remained viable. Subsequently, after further motions and briefing, the trial court issued a second opinion and order, clarifying that it had dismissed all of plaintiffs' claims, and that only defendants' counterclaims remained. Plaintiffs appeal by right. II We review de novo a trial court's decision to grant or deny summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A party's motion brought under MCR 2.116(C)(10) tests the factual sufficiency of a claim and must be supported by affidavits, depositions, admissions, or other documentary evidence. Id. at 120. The trial court must view the substantively admissible evidence submitted at the time of the motion in the light most favorable to the party opposing the motion to determine if a party is entitled to judgment as a matter of law. Id. at 118, 120. If the moving party fulfills its initial burden, the party opposing the motion then must demonstrate with evidentiary materials that a genuine and material issue of disputed fact exists, and may not rest upon mere allegations or denials in the pleadings. MCR 2.116(G)(4); Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). A trial court properly grants summary disposition when no genuine issue regarding any material fact exists and the moving party is entitled to judgment as a matter of law. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." Id. We review questions of law de novo. Bertrand v Mackinac Island, 256 Mich App 13, 28; 662 NW2d 77 (2003). Accordingly, this Court reviews de novo the interpretation and -2-


application of a statute. Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 132 (2003). Further, both the questions of whether contract language is ambiguous and the proper interpretation of a contract are questions of law, which we review de novo. Klapp v United Ins Group Agency, Inc, 468 Mich 459, 463; 663 NW2d 447 (2003). III Plaintiff argues that the trial court erred by dismissing his claim that McNish, as majority stockowner, breached his fiduciary duty to both the corporation and plaintiff, a minority stockholder, because material questions of fact remain regarding this claim. We disagree. In Production Finishing Corp v Shields, 158 Mich App 479, 486; 405 NW2d 171 (1987), this Court citing elemental rules of agency observed: "It is beyond dispute that in Michigan, directors and officers of corporations are fiduciaries who owe a strict duty of good faith to the corporation which they serve." Applying common-law agency principles, "`[a] fiduciary owes a duty of good faith to his principal and is not permitted to act for himself at his principal's expense during the course of his agency.'" The Meyer and Anna Prentis Family Foundation, Inc v Barbara Ann Karmanos Cancer Institute, 266 Mich App 39, 49; 698 NW2d 900 (2005), quoting Central Cartage v Fewless, 232 Mich App 517, 524; 591 NW2d 422 (1998). Here, all of the alleged breaches of fiduciary duty by defendant relate to the appointment of Beaudoin as an officer and manager of the company. In essence, plaintiff claims that Beaudoin's promotion would ultimately lead to the financial ruin of the company and consequent depreciation in the value of the company's stock. Plaintiff cites Salvador v Connor, 87 Mich App 664; 276 NW2d 458 (1978), in support of his position. But, in that case the plaintiff alleged the defendants hired relatives for managerial positions where they "performed few, if any, services of value for the corporation," and the defendants otherwise fraudulently diverted corporate money for the defendants own benefit. In contrast, plaintiff alleges that Beaudoin was simply not capable of managing the company, not that McNish was diverting corporate assets to his own use. When a party fails to cite any supporting legal authority for its position, the issue is deemed abandoned. Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999). Moreover, plaintiffs' claim of harm to the corporation is based on speculation about the company's performance in the future. After a change in management, company revenues may decrease for any number of reasons, including a general downturn in economic conditions, economic health of clients, loss of key personnel, change in accounting practices, or increased competition. Indeed, plaintiff acknowledged that after his departure from the company, the company would face a difficult transition. In addition, plaintiff testified that after leaving the company he started working for the company's competitors. In sum, plaintiff's claim regarding breach of fiduciary duty must fail because it is based on speculation regarding future profitability of the corporation. The causal relationship between the alleged breach of duty and the alleged harm is too speculative to be sustained. See, e.g., in another context, Skinner v Square D Co, 445 Mich 153, 164; 516 NW2d 475 (1994) ("To be adequate, a plaintiff's circumstantial proof must facilitate reasonable inferences of causation, not mere speculation."). Moreover, McNish's decisions are shielded by the business judgment rule, under which courts are reluctant to interfere with the discretion vested in the directors and officers of the corporation to manage its affairs. In re Estate of Butterfield, 418 Mich 241, 255; 341 NW2d 453 -3-


(1983); See, also, Dodge v Ford Motor Co, 204 Mich 459, 500; 170 NW 668 (1919), quoting 2 Cook on Corporations (7th Ed.),

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