Olympic Forest Products, Ltd. v. Cooper
Opinion of the Court
OPINION
Plaintiff-Appellant Olympic Forest Products, Ltd. (“Olympic”) appeals the district court’s final judgment. For the reasons that follow, we AFFIRM the judgment of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of the alleged tortious acts of Defendant-Appellee Johnny Cooper (“Cooper”) and the entities of which he was the former President and sole owner, Wolverine Auto Purchasing, Inc. (“Wolverine”) and International Vehicle Importers, Inc. (“IVI”). Wolverine was engaged in the business of buying and reselling vehicles, and IVI was in the business of importing vehicles into the United States. At the time of the transactions involved in this litigation, Cooper ran all operations at Wolverine.
Olympic is the assignee and affiliate of Swathmore Auto Group (“Swathmore”). During the relevant time period, Swath-more was in the business of importing vehicles from Canada to the United States for resale. The business was operated, in part, through a nominee corporation: Dealers Wholesale Depot Company (“DWD”).
In April 2000, Cooper represented to DWD and Swathmore that Cooper, Wolverine and/or IVI were able to purchase twenty-three new Harley Davidson Motorcycles and resell them to an Arizona Dealership at a profit of at least $400.00 per motorcycle, with a ten day turnaround. Based on these representations, Swath-more and DWD agreed to purchase the motorcycles and complete the proposed resale. Wolverine invoiced Swathmore and DWD for eleven motorcycles (a total of $204,750.00) on April 17, 2000, and twelve motorcycles (a total of $216,500.00) on April 25, 2000. Pursuant to these invoices, Swathmore transferred $421,250.00 to Wolverine’s bank account. Subsequently, IVI imported the motorcycles. Wolverine then sold them to an Arizona dealership.
Wolverine did not immediately pay the net proceeds of the motorcycles, plus the agreed profits, to Swathmore or DWD. Instead, some months later, Wolverine paid Swathmore a total of $77,000.00 in four installments (for four motorcycles). Cooper acknowledged that it was his decision not to pay the remainder of the sums due to Swathmore and DWD.
Within six months of the transaction, Wolverine and IVI sold substantially all of their assets to Adesa Importation Services, Inc. (“Adesa”). At closing, which occurred on December 21, 2000, Wolverine and IVI received $2.5 million from Adesa. Of this amount, $1.4 million was paid to secured creditors and the balance was paid to trade creditors. Olympic contends that approximately $500,000.00 of trade debt — including the monies owed to DWD and Swath-more — was left unpaid. The DefendantsAppellees concede that Wolverine owes Olympic money.
On October 30, 2001, Olympic filed suit against Cooper, IVI, Wolverine, Adesa and Robert Bolenbaugh (a salesman for Wolverine). Subsequently, Adesa and Bo
Based on admissions made by Cooper, Olympic then moved for summary judgment against Wolverine and IVL The district court ultimately granted this motion after both entities failed to respond. The resulting judgment effectively brought the case to an end below and this appeal followed.
STANDARD OF REVIEW
A district court’s grant of summary judgment is reviewed de novo. Martin v. Indiana Michigan Power Co., 381 F.3d 574, 578 (6th Cir. 2004). Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering such a motion, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is “whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
DISCUSSION
Olympic contends that the district court erred in finding as a matter of law that Cooper was shielded by the corporate veil. It asserts that this action should be remanded so that it may proceed against Cooper on claims of conversion, fraud and civil conspiracy.
A. Piercing the Corporate Veil
In dismissing Olympic’s claims against Cooper, the district court conclud
The law treats a corporation as an entirely separate entity from its stockholders, even where only one person owns all the corporation’s stock. Foodland Dist. v. Al-Naimi, 220 Mich.App. 453, 559 N.W.2d 379 (1996). As a general rule, shareholders, directors and officers of a corporation cannot be held personally hable for the corporation’s acts or debts, unless unusual circumstances justify disregarding the corporate entity. Bitar v. Wakim, 456 Mich. 428, 572 N.W.2d 191 (1998). However, where the corporate fiction is used to subvert justice, the corporate identity may be ignored. Id. This concept is commonly referred to as piercing the corporate veil and is typically used “to protect a corporation’s creditors ... when there is a unity of interest of the stockholders and the corporation and where the stockholders have used the corporate entity in an attempt to avoid legal obligations.” Allstate Ins. Co. v. Citizens Ins. Co., 118 Mich.App. 594, 325 N.W.2d 505, 508 (1982).
Under Michigan law, the following elements must be satisfied in order to pierce the corporate veil:
First, the corporate entity must be a mere instrumentality of another entity or individual. Second, the corporate entity must be used to commit a fraud or wrong. Third, there must have been an unjust loss or injury to the plaintiff.
SCD Chemical Dist., Inc. v. Medley, 203 Mich.App. 374, 512 N.W.2d 86 (1994). It should also be noted that when corporate officials participate individually in fraudulent or tortious conduct, they may be held personally responsible, regardless of whether they are acting on their own behalf or on behalf of the corporation. Attorney General v. Ankersen, 148 Mich.App. 524, 385 N.W.2d 658 (1986).
Here, the district court held that Olympic failed to present sufficient evidence to pierce the corporate veil. Specifically, the court held that Olympic had not demonstrated that “Cooper used his corporations as a mere instrumentality to suit his own improper purposes.” Further, it noted that there was no evidence indicating that Cooper ignored corporate formalities or blurred the distinction between the corporations and himself.
Although the district court did not specifically address whether Cooper personally engaged in fraudulent or illegal activity, it is apparent from the record that the evidence was insufficient regarding this issue. In support of its position that Cooper engaged in fraudulent or wrongful conduct, Olympic states that “Cooper admitted that he personally engaged in the concealment of money he knew to belong to Olympic.” (Appellant’s Br. at 16-17). However, after examining the portions of the record cited by Olympic, it does not appear that Cooper admitted to concealing money that belonged to Olympic. Rather, Cooper acknowledged that a debt was owed to Olympic and that there were insufficient funds to pay it.
However, even if the district court erred in its piercing the corporate veil analysis, Olympic has not suffered any prejudice inasmuch as there is insufficient evidence to create a genuine issue of material fact with respect to the alleged conversion, fraud and civil conspiracy claims.
B. Conversion
The district court concluded that Olympic had only pleaded a claim for statutory conversion and had failed to present sufficient evidence to sustain this claim. Olympic contends, however, that it also pleaded a cause of action for common law conversion and that the district court failed to consider the viability of this claim. We agree with the district court’s conclusion that Olympic only pleaded a statutory conversion claim and did not produce evidence to create a material issue of fact regarding this issue.
Count II of the Complaint sets forth Olympic’s conversion claim. This Count provides, in relevant part, that:
22. Olympic hereby incorporates its allegations contained in paragraphs 1 through 21 as if set forth herein in their entirety.
23. Cooper, Bolenbaugh, Wolverine and/or TV! wrongfully converted and/or stole at least $344,250 of funds belonging to Swathmore.
24. Pursuant to M.C.L. 600.2919a, Olympic (as Swathmore’s assignee) may recover three times the amount of actual damages sustained ... plus reasonable costs and fees.
The clear language of the relevant section of the Complaint does not allege a claim for common law conversion. Instead, the Complaint specifically references the statutory section applicable to conversion. Further, in paragraph 24, Olympic demands treble damages, which is derived from M.C.L. § 600.2919a.
Additionally, Olympic’s failure to address the viability of a common law conversion claim in response to Cooper’s motion for summary judgment is a further indication that it never intended to proceed against Cooper under that claim. In his motion, Cooper sought a judgment in its favor on all claims, specifically addressing the issue of statutory conversion. In opposing the motion, Olympic never asserted that Cooper failed to address its separate common law conversion claim. For these reasons, we agree with the district court and conclude that Olympic failed to allege a claim based upon common law conversion.
C. Fraud
Likewise, while the record may support a claim for breach of contract, it does not support a corresponding claim of fraud. In Crews v. General Motors Corp., 400 Mich. 208, 253 N.W.2d 617 (1977), the Michigan Supreme Court held that a tort action will not lie based solely on nonperformance of a contractual duty. Under the contract in issue in this case, the parties agreed that Olympic (or its affiliates) would transfer money to the Defendants for the purchase of motorcycles. In turn, the Defendants agreed to resell the motorcycles and pay Olympic the proceeds, plus any net profits. It is undisputed that the sole factual allegation of misconduct supporting Olympic’s claims is that the Defendants failed to re-pay all of the money owed to Olympic pursuant to their agreement. As such, the contract between the parties is the sole source of any duty that the Defendants owed to Olympic. Under these circumstances, Olympic cannot maintain an action for fraud separate from the breach of contract claim.
While the dissent asserts that the district court erred in dismissing Olympic’s fraud claim against Cooper based on his individual actions, it is apparent that the evidence presented by Olympic does not support such a claim. No evidence was presented that Cooper knew at the time his company contracted with Swath-more/DWD that payments would not be made pursuant to their agreement. And again, while his subsequent decision to withhold such payments may constitute a breach of contract on behalf of the company, it is axiomatic that not every breach of contract constitutes a claim for fraud. The fact that Wolverine and IVI used monies received from the subsequent sale of the business to pay secured and trade creditors rather than Swathmore/DWD does not alter this analysis. Here, the fraud claim against Cooper fails for lack of proof under Rule 56 of the Federal Rules of Civil Procedure.
Inasmuch as Olympic failed to allege facts to support claims for conversion and fraud, the civil conspiracy claim likewise fails. See Magid v. Oak Park Racquet Club Associates, Ltd., 84 Mich.App. 522, 269 N.W.2d 661, 664 (1978) (an allegation of conspiracy, standing alone, is not actionable).
CONCLUSION
We AFFIRM the judgment of the district court.
. Olympic’s appeal relates only to the dismissal of its claims against Cooper.
. Olympic also asserts that the district court improperly dismissed its conversion claim, arguing that the court failed to consider the viability of a common law claim of conversion. The Defendants argue that Olympic did not allege a common law claim in its complaint. Therefore, they assert that the court properly dismissed this claim inasmuch as Olympic failed to present sufficient evidence to sustain the only claim alleged (t.e., the statutory conversion claim).
. Cooper testified that his initial reason for not paying the debt was that he had intended to sue Olympic for its alleged attempts to "steal” Wolverine’s employees. He indicated that he elected to pay other creditors because he believed that the monies owed to Olympic would be offset by the future judgment against it. Although Cooper’s rationale for
. Although the Michigan courts have held that a plaintiff may pursue a claim of fraud in the inducement extraneous to an action for breach of contract, Olympic has not alleged that the Defendants-Appellees made misrepresentations to induce Olympic into entering into this contract. See e.g., Huron Tool and Engineering Co. v. Precision Consulting Services, Inc., 209 Mich.App. 365, 532 N.W.2d 541, 546 (1995).
. Neither Citizens Ins. Co. of Am. v. Delcamp Truck Ctr., Inc., 178 Mich.App. 570, 444 N.W.2d 210, 213 (1989), nor Trail Clinic, P.C. v. Bloch, 114 Mich.App. 700, 319 N.W.2d 638, 642 (1982), alters this analysis. Both cases discuss individual liability for conversion. Where, as here, the conversion claim was properly dismissed — as the dissent concedes — -the claim may not be revived by simply calling it fraud or civil conspiracy. These
Concurring Opinion
I concur in the majority opinion insofar as it affirms summary judgment in Cooper’s favor on Olympic’s conversion claim. That claim was properly dismissed because the most reasonable interpretation of Olympic’s complaint is that it alleges only a claim of statutory conversion and Olympic does not contest the dismissal of its claim for statutory conversion. As to the fraud and civil conspiracy claims, however, I must respectfully dissent because in my view there are genuine issues of material fact such that a trial on those claims is required. Fed.R.Civ.P. 56. In particular, it is my view that Cooper may be held individually liable for the torts of the entities that he represented in an official capacity (Wolverine and IVI). Furthermore, regardless of whether Cooper can be held liable for Wolverine’s and IVI’s tortious conduct, he can be held liable for tortious conduct in which he actively participated. In other words, the majority’s veil-piercing analysis does not, as its opinion suggests, resolve this case.
We review de novo a district court’s decision to grant summary judgment. Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir. 2001). Summary judgment must be granted if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A dispute over a material fact is only a “genuine issue” if a reasonable jury could find for the nonmoving party on that issue. Cockrel, 270 F.3d at 1048 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In reviewing the district court’s grant of summary judgment, this Court must view all the facts and the inferences drawn therefrom in the light most favorable to the nonmoving party. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
Generally, the denial of a motion to reconsider is reviewed for an abuse of discretion. Northland Ins. Co. v. Stewart Title Guar. Co., 327 F.3d 448, 454 (6th Cir. 2003) (citing GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 832 (6th Cir. 1999)). However, when a Rule 59(e) motion seeks reconsideration of a grant of summary judgment, this Court conducts a de novo review using the same legal standard employed by the district court. Id. at 454-55 (citing Smith v. WalMart Stores, Inc., 167 F.3d 286, 289 (6th Cir. 1999); Columbia Gas Transmission, Corp. v. Limited Corp., 951 F.2d 110, 112 (6th Cir. 1991)).
The district court granted Defendant Cooper summary judgment on Olympic’s claims for breach of contract, conversion, fraud, civil conspiracy, and constructive trust on the ground that Cooper was an officer of Wolverine and IVI, and Olympic had failed to allege facts showing that it was appropriate to pierce these entities’
Michigan law clearly distinguishes between a corporate officer’s liability for his own tortious conduct and the ability to hold a corporate officer hable for the actions of the corporation through veil-piercing. The Michigan Court of Appeals has held that “[i]t is beyond question that a corporate employee or official is personally liable for all tortious or criminal acts in which he participates, regardless of whether he was acting on his own behalf or on behalf of the corporation.” Attorney General v. Ankersen, 148 Mich.App. 524, 385 N.W.2d 658, 673 (1986) (citations omitted); see also Citizens Ins. Co. of Am. v. Delcamp Truck Ctr., Inc., 178 Mich.App. 570, 444 N.W.2d 210, 213 (1989) (‘When conversion is committed by a corporation, the agents and officers of the corporation may also be found personally liable for their active participation in the tort, even though they do not personally benefit thereby.”) (citations omitted); Trail Clinic, P.C. v. Bloch, 114 Mich.App. 700, 319 N.W.2d 638, 642 (1982) (“This Court has held that where a defendant acts on his own behalf or as an officer or agent of a corporation he is personally liable for the torts in which he actively participated.”) (citations omitted). The personal liability of a corporate officer “is not a question of piercing the corporate veil.” Ankersen, 385 N.W.2d at 673.
Thus, in Citizens, the court held that a company president, sued by an insurance company for failing to return an overpayment, could be held personally hable for the amount converted because he had actively participated in the conversion. Citizens Ins., 444 N.W.2d at 213. Similarly, in Trial Clinic, the court held that a director and shareholder of a medical clinic could be held personally hable for converting reimbursement checks, because the evidence estabhshed that he had actively assisted with the conversion and “acted either in behalf of one of the companies he was associated with or for his own interest.”
When Wolverine and/or IVI failed to remit payments owed to Swathmore under the resale agreement, Barrie Kurdzeil, a representative of Swathmore, contacted Johnny Cooper by telephone. Cooper acknowledged that Wolverine and IVI were long overdue in returning these funds to Swathmore and DWD. Cooper also stated that he had used the funds in other deals several times since completing the motorcycle deal. Cooper claimed that, pursuant to a business plan he had developed for Wolverine, DWD agreed to have the proceeds from the motorcycle deal reinvested, although there is nothing in writing to that effect.
Despite Cooper’s assurances that the funds would be forwarded, he paid Swath-more/DWD only $77,000. Swath-more/DWD is owed over $350,000 (the cost of the motorcycles less $77,000) plus profits. Cooper claims that he stopped repaying Swathmore/DWD when he began contemplating legal action against DWD, which he believed was “poaching Wolverine’s employees and using the business plan developed by Cooper (for Wolverine) to set up a competing business.” Def's Br. at 4. Within six months of the motorcycle transaction, Cooper negotiated the sale of his businesses to Adesa Importation Services, Inc. (“Adesa”). The proceeds that Wolverine and IVI grossed from the sale were used to repay outstanding bank loans and secured creditors, and the remaining monies were used to pay their accounts payable (trade creditors). Cooper was $500,000 short in its ability to pay all of the trade creditors, including the debt to Swathmore/DWD. Cooper never received any money from the sale of his businesses to Adesa. Viewed in the light most favorable to Olympic, these facts arguably suggest that Cooper actively participated in the torts of conversion, fraud, and civil conspiracy to defraud, the last of which claims Olympic no longer pursues. In particular, these facts could support a reasonable fact-flnder’s inference that Cooper had the specific intent to defraud. The majority reaches a contrary conclusion by engaging in fact-finding of its own. It is not for us to decide whether Cooper had the intent to defraud; our charge is limited to determining whether a reasonable jury could so find. Because on this record a reasonable jury could find in Olympic’s favor, the fraud and conspiracy claims should proceed to trial.
Accordingly, I submit that the district court erred in dismissing the fraud and civil conspiracy claims with respect to Cooper individually. I therefore part ways with my colleagues; I would reverse the district court’s grant of summary judgment to Cooper on Olympic’s fraud and civil conspiracy claims and would remand the case for trial on those claims.
. The majority suggests Citizens and Trail Clinic are irrelevant to the case at bar because they involved conversion claims. It should be clear from my discussion that I do not point out these cases for their treatment of the plaintiffs’ conversion claims, but rather because they illustrate a general principle of Michigan tort law, namely, that a corporate officer’s individual liability "is not a question of piercing the corporate veil.” Ankersen, 385 N.W.2d at 673.
Reference
- Full Case Name
- OLYMPIC FOREST PRODUCTS, LTD., Plaintiff-Appellant, v. Johnny COOPER, Et Al., Defendants-Appellees
- Cited By
- 4 cases
- Status
- Unpublished