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STATE OF MICHIGAN 

COURT OF APPEALS 

DC MEX HOLDINGS, L.L.C., 

 Plaintiff-Appellee, 

UNPUBLISHED 

May 5, 2015 

v No. 318791 

Oakland Circuit Court 

AFFORDABLE LAND, L.L.C., and DALE B. 

FULLER, 

LC No. 2011-122199-CB 

 Defendants-Appellants. 

Before: TALBOT, C.J., and MURPHY and GLEICHER, JJ. 

PER CURIAM. 

 Defendants appeal as of right a conditional consent judgment that preserved defendants’ 

right to appeal the trial court’s earlier order granting plaintiff partial summary disposition on the 

question of liability. Because we conclude that the trial court did not err when it granted partial 

summary disposition in plaintiff’s favor, we affirm the judgment of the trial court. 

 This action arises out of a failed property development venture in Mexico. Plaintiff, DC 

Mex Holdings, L.L.C. (“DC Mex”), is an Arizona limited liability company owned by David 

Carter. Defendant, Affordable Land, L.L.C. (“Affordable Land”), is a Michigan limited liability 

company owned by defendant Dale Fuller. In December 2006, Carter and Fuller entered into a 

joint venture whereby their two companies, DC Mex and Affordable Land, agreed to form a 

limited liability company named Arimex America, L.L.C. (“Arimex America”). DC Mex and 

Affordable Land each owned a 50 percent interest in Arimex America. The purpose of the joint 

venture was to develop land in Mexico. An operating agreement was executed between DC Mex 

and Affordable Land. The parties agreed that Carter would live in Mexico to oversee the 

development of the property while Fuller remained in the United States assuming responsibility 

for the accounting and paperwork related to Arimex America and the later formed Mexican 

company identified as Arimex Properties SA de CV (“Arimex Mexico”). Arimex America held 

nearly a 100% ownership interest in Arimex Mexico. 

 In late 2006, with the aid of real estate brokers, Eddie Lee Ogden and Dan Kimple, 

Arimex Mexico purchased real property near Cabo San Lucas, Mexico (the “Cabo property” or 

“property”). After the purchase of the Cabo property, Arimex Mexico entered into an 

Irrevocable Development, Sales, and Marketing Services Agreement (“Services Agreement”) 

with Ogden and Kimple on February 12, 2007. Pursuant to this Services Agreement, Ogden and 
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Kimple would receive a 15 percent commission on any future sales of the Cabo property. Ogden 

and Kimple were also granted powers of attorney through the Services Agreement. Without 

Fuller’s knowledge or consent, Carter executed the Services Agreement as the representative of 

Arimex Mexico. 

 In December 2007, Kimple and Ogden located a buyer for a portion of the Cabo property, 

Tokase Properties, S de RL de CV (“Tokase”), and a purchase/development agreement was 

reached. Apparently, no translated version of this agreement is available, and the parties are 

somewhat vague in describing the full nature of the agreement. Pieced together from deposition 

testimony, affidavits, and assertions in the briefs, it appears that under the agreement two-thirds 

of the Cabo property was to be sold outright to Tokase, with the remaining one-third to be placed 

into a contemplated development trust, for which Tokase would serve as developer and seller of 

the trust-held land. As part of the overall arrangement, it was agreed that Ogden and Kimple’s 

Services Agreement with Arimex Mexico would be terminated and that Ogden and Kimple 

would enter into a different commission agreement with Tokase. Consequently, Arimex Mexico, 

Kimple, and Ogden mutually agreed in writing to terminate the Services Agreement. The 

Termination Agreement specifically provided that Ogden and Kimple waived any claim for 

outstanding commissions and that their powers of attorney to act on behalf of Arimex Mexico 

were revoked. Fuller admitted that the Services Agreement was terminated and that this 

extinguished Ogden and Kimple’s rights to any commissions. However, he claims that he did 

not become aware of the Termination Agreement until almost two years after the fact. We note, 

however, that Fuller’s representative, attorney Jonathan Pikoff, signed the Termination 

Agreement on behalf of Arimex Mexico. Fuller specifically testified that Pikoff was his 

representative at the closing for the Tokase purchase, which is also the point in time when the 

Termination Agreement was executed. 

 In February 2008, Tokase decided not to complete part of the agreement with Arimex 

Mexico, given allegations of a breach and the inability of Arimex Mexico to cohesively negotiate 

issues that arose between it and Tokase, where Fuller and Carter presented conflicting positions 

to Tokase. Although Tokase cancelled the trust-related development component of the 

agreement that concerned one-third of the Cabo property, it continued to exercise its right to 

simply purchase outright the remaining two-thirds of the Cabo property. Thus, ultimately, 

Tokase became the owner of two-thirds of the Cabo property and Arimex Mexico retained onethird of the property; it is this one-third portion of the Cabo property that is pertinent to the 

instant dispute and about which the remainder of our discussion concerns. 

 On October 8, 2008, Kimple filed a lawsuit in Mexico seeking a $655,500 commission 

from Arimex Mexico based on the sale to Tokase. Kimple served this lawsuit on his partner 

Ogden. Ogden accepted service, purportedly on behalf of Arimex Mexico. Neither Ogden nor 

Kimple notified Carter of the lawsuit. The lawsuit was settled on December 10, 2008. Ogden 

apparently used his previously-revoked power of attorney (granted by the Services Agreement 

but revoked by the Termination Agreement) to settle the lawsuit on behalf of Arimex Mexico. 

Then, it appears that Ogden, purportedly as an Arimex Mexico representative, conveyed to his 

partner Kimple the one-third portion of the Cabo property still owned by Arimex Mexico as 

payment on the $655,550 judgment. Carter and Fuller were unaware of the Kimple commission 

lawsuit and of the Ogden transfer of title when it occurred. All parties agree that Kimple and 
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Ogden’s conduct was fraudulent. Indeed, Fuller testified that Ogden and Kimple stole the 

property from them. 

 Sometime in December 2008, Fuller and Ogden spoke by phone. According to Fuller, 

Ogden requested that Fuller, on behalf of Arimex Mexico, sign a “lien” on the Cabo property, 

which would also include an acknowledgement that Ogden and Kimple were still owed $655,500 

in commissions. Fuller agreed to this request and, further, he did not inform Carter of the events. 

Thereafter, Ogden sent Fuller a document to sign. Despite the fact that it was written in Spanish, 

that Fuller did not read or understand Spanish, and that he did not have an English translation of 

the document, Fuller signed the document on January 15, 2009. Fuller relied upon his attorney’s 

verbal translation of the document. Fuller signed the document because he believed that Ogden 

and Kimple were entitled to commission payments pursuant to the Services Agreement, which he 

did not realize or believe had been terminated. The translated version of the document signed by 

Fuller indicated that the document was not, in fact, an acknowledgment of lien, but rather, a 

Settlement Agreement. For all practical purposes, this Settlement Agreement appeared to be a 

ratification by Fuller of the previous actions taken by Ogden and Kimple, including the 

conveyance of the property, and it also contained a 15-day statute of limitations. Fuller did not 

inform Carter of this agreement, nor did he request Carter’s consent before signing the 

document. Fuller and Carter had been at odds with each other for some time and were not 

communicating. 

 In May 2009, during a title search, Carter discovered that Arimex Mexico’s portion of the 

Cabo property had been conveyed by Ogden to Kimple six months earlier. Carter immediately 

investigated the possibility of initiating litigation in Mexico against Kimple and Ogden. Fuller 

refused to cooperate with Carter’s efforts. Further, Fuller did not tell Carter about the lien that 

Fuller believed he had earlier granted to Ogden and Kimple. 

 In August 2009, Carter filed a lawsuit in Mexico on behalf of Arimex Mexico to regain 

possession of the Cabo property. Around this same time, and unbeknownst to Carter, Fuller met 

with Ogden and Kimple in Mexico. At the time of this meeting, Fuller, Ogden, and Kimple 

discussed a “Side Agreement.” By virtue of this agreement, Kimple and Ogden would sell the 

Cabo property, which was now titled in Kimple’s name, and retain $655,000 to cover their 

“lien.” They would then pay off others who had outstanding liens against the property and, after 

that, a million dollars would be given to Fuller. According to Fuller, the money would go to 

him, and not Arimex Mexico, because Arimex Mexico no longer owned the property at that 

point. This Side Agreement was reduced to writing on September 23, 2009. 

 In addition to the foregoing agreement, at Kimple’s request, Fuller also signed on 

October 8, 2009, a document, written in Spanish, that would effectively withdraw the lawsuit 

Carter had initiated on Arimex Mexico’s behalf to restore ownership of the property. Fuller did 

not advise Carter of this event. Fuller testified that he signed the document because he had the 

Side Agreement with Kimble and Ogden. It appears that despite Fuller’s attempt to dismiss the 

litigation initiated by Carter in Mexico, the lawsuit progressed to the point where a Mexican trial 

court actually reversed the transfer of title to Kimple. However, Kimple apparently appealed this 

ruling and a Mexican appellate court found on June 24, 2010, that Fuller’s execution of the 

January 2009 Settlement Agreement on behalf of Arimex Mexico triggered the running of the 

15-day limitations period that expired before Carter filed the lawsuit to set aside the Ogden-
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Kimple transfer of title. Consequently, the Mexican appellate court reversed the Mexican trial 

court and dismissed Carter’s lawsuit to set aside the transfer of the Cabo property to Kimple. 

Defendants agree that the ruling of the Mexican appellate court was based on the existence of the 

January 15, 2009 Settlement Agreement signed by defendant Fuller. As a result of these events, 

it appears that the Mexican court system has now conclusively determined that Kimple maintains 

valid title to the Cabo property (one-third of original land). 

 On October 5, 2011, plaintiff filed this action in the Oakland Circuit Court naming Fuller 

and his company Affordable Land as defendants. Plaintiff alleged fraud, willfully unfair and 

oppressive conduct in violation of MCL 450.4515(1) of the Michigan Limited Liability 

Company Act, MCL 450.4101 et seq., and breach of several provisions of the Arimex America 

joint venture Operating Agreement. 

 On April 25, 2012, plaintiff moved for partial summary disposition with regard to 

liability. Plaintiff argued that there was no genuine issue of material fact related to whether 

defendants engaged in fraudulent and oppressive activity and whether defendants violated the 

terms of the Operating Agreement. In response to plaintiff’s motion, defendants argued that: (1) 

the motion was premature because discovery was continuing; (2) plaintiff lacked standing to 

assert its claims because the entity, DC Mex, was not formed until after the operative events took 

place; (3) plaintiff’s oppression claim was both time-barred and precluded on account of 

plaintiff’s unclean hands; (4) with regard to the claim of breach of the Operating Agreement, 

questions of fact existed with respect to whether plaintiff was the first to breach the agreement; 

and (5) plaintiff’s silent fraud claim failed as a matter of law because plaintiff could not establish 

that defendants had a legal duty to make any disclosures to plaintiff. 

 On September 20, 2012, the trial court issued its opinion and order granting plaintiff’s 

motion for summary disposition on the issue of liability only. The court rejected defendants’ 

argument that plaintiff’s motion for partial summary disposition was premature because 

discovery was still open. The court noted that further discovery would not yield additional 

relevant facts. The court also rejected defendants’ claim that plaintiff lacked standing to initiate 

the suit. The court found that there was sufficient evidence presented that DC Mex was 

organized in December 2006, well before the critical events occurred. Similarly, the court 

rejected defendants’ assertion that plaintiff’s claims were time-barred. With respect to plaintiff’s 

oppression claim, the court found that there was no genuine issue of material fact that plaintiff 

had conclusively established that Fuller’s conduct “resulted in the loss of the Cabo property, as 

the Mexican Court of Appeals reversed the trial court’s decision to return the Cabo property to 

Mr. Carter and Defendant Fuller because of the January 15, 2009 Settlement Agreement.” 

 With respect to plaintiff’s claim that defendants breached the terms of the Operating 

Agreement, the court did not specifically find that defendants’ actions constituted a breach of the 

parties’ agreement. Instead, it only seemed to specifically address defendants’ assertion that 

plaintiff could not establish that it had been damaged by defendants’ alleged conduct. In this 

regard, the court reiterated its finding that it was “defendant Fuller’s conduct that precipitated the 

loss of the Cabo property, as the Mexican Court of Appeals based its decision on the January 15, 

2009 Settlement Agreement.” With respect to plaintiff’s claim that defendants’ conduct 

constituted silent fraud, the court noted that defendants had a legal duty to disclose pertinent 

information to plaintiff related to the Cabo property because “Arimex America’s Operating 
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Agreement obligated each member and manager to disclose relevant information about the 

disposition of Arimex America’s sole asset.” The court then found that Fuller did not disclose to 

plaintiff material information regarding the January 15, 2009 Settlement Agreement. The court 

ultimately concluded that there was no issue of fact “regarding whether information concerning 

the existence of the Settlement Agreement was material and the failure to disclose that 

information led to the loss of the property.” Defendants’ motion for reconsideration was 

considered and denied by the trial court on November 9, 2012.1 Following the denial of 

reconsideration, this appeal ensued. 

 For their first argument on appeal, defendants contend that the trial court erred in 

granting summary disposition in plaintiff’s favor on the silent fraud claim because, according to 

defendants, plaintiff failed to establish fraudulent intent (intent to deceive), detrimental reliance, 

and a causal connection between Fuller’s actions or silence and the loss of the property.2 We 

initially note that defendants failed to make this argument below; accordingly, it is not preserved 

for appeal and we need not review it. Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 

 

1

 In their motion for reconsideration, defendants asserted that the trial court failed to fully 

consider their argument that plaintiff was not entitled to any relief based on the doctrine of 

unclean hands. Defendants further argued that the court erred when it concluded that defendant 

Fuller’s behavior resulted in the loss of the Cabo property. In this regard, defendants argued that 

it was improper for the trial court to rely upon the affidavit of the Mexican attorney interpreting 

the Mexican appellate court’s ruling and on a woefully incomplete and unsworn translation of 

the Mexican court’s opinion. Finally, defendants argued, for the first time, that the trial court 

erred “by neglecting to consider the economic loss doctrine in finding a legal duty from the 

contractual obligations contained in ‘Arimex America’s Operating Agreement’ to uphold 

Plaintiff’s silent fraud claim.” Defendants argued that pursuant to the economic loss doctrine, an 

action in tort may not be maintained where a contractual agreement exists, unless a duty, 

separate and distinct from the contractual obligation is established. In denying reconsideration, 

the trial court rejected defendants’ argument that the court improperly considered an incomplete 

translation of the Mexican court’s opinion, noting that defendants did not object to the validity or 

substance of the translated portion of the opinion, that the parties had agreed on the translator, 

and that defendants had not submitted evidence supporting a different interpretation or the 

opinion translated in its entirety. The court also rejected defendants’ objection to its 

consideration of the Perez-Correa Affidavit interpreting the Mexican appellate court’s opinion. 

The court noted that it did not rely on the affidavit when rendering its September 20, 2012 ruling. 

With respect to defendants’ claim that the trial court failed to consider plaintiff’s unclean hands, 

the court noted that defendants had not submitted evidence that Carter attempted to mislead or 

deceive the Mexican courts, which was the relevant inquiry when deciding the application of the 

unclean hands doctrine in this case. Finally, the court rejected defendants’ assertion that the 

economic loss doctrine barred plaintiff’s tort claim for silent fraud. 

2

 We note that defendants do not renew an argument under the economic loss doctrine, see, e.g., 

Neibarger v Universal Coops, Inc, 439 Mich 512; 486 NW2d 612 (1992); therefore, our analysis 

will assume, without deciding, that there is no conflict with the doctrine. 
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Mich 211, 234; 507 NW2d 422 (1993) (“Issues raised for the first time on appeal are not 

ordinarily subject to review.”). Regardless, on substantive review, the argument lacks merit. 

This Court reviews de novo a trial court’s decision on a motion for summary disposition under 

MCR 2.116(C)(10). Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). A 

motion for summary disposition under this court rule requires the reviewing court to consider 

“the pleadings, admissions, and other evidence submitted by the parties in the light most 

favorable to the nonmoving party. Summary disposition is appropriate if there is no genuine 

issue regarding any material fact and the moving party is entitled to judgment as a matter of 

law.” Douglas v Allstate Ins Co, 492 Mich 241, 256; 821 NW2d 472 (2012) (citation and 

quotation marks omitted). “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.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). 

 Michigan recognizes “three interrelated fraud doctrines: (1) fraudulent 

misrepresentation, (2) innocent misrepresentation, and (3) silent fraud.” Barclae v Zarb, 300 

Mich App 455, 476; 834 NW2d 100 (2013) (citation omitted). A claim of fraudulent 

misrepresentation, also referred to as actionable fraud, generally requires a showing that: 

“(1) the defendant made a material representation; (2) the representation was 

false; (3) when the defendant made the representation, the defendant knew that it 

was false, or made it recklessly, without knowledge of its truth as a positive 

assertion; (4) the defendant made the representation with the intention that the 

plaintiff would act upon it; (5) the plaintiff acted in reliance upon it; and (6) the 

plaintiff suffered damage.” [Bergen v Baker, 264 Mich App 376, 382; 691 NW2d 

770 (2004) (citations omitted).] 

By contrast, under the silent fraud doctrine, a cause of action can be maintained when there is a 

suppression of material facts, along with a legal or equitable duty to disclose those facts. M & D, 

Inc v McConkey, 231 Mich App 22, 35-36; 585 NW2d 33 (1998). Specifically, for silent fraud, a 

plaintiff must prove that the defendant knew of a material fact but concealed or suppressed the 

truth through false or misleading statements or actions with the intent to deceive. Roberts v 

Saffell, 280 Mich App 397, 405; 760 NW2d 715 (2008). “A misrepresentation need not 

necessarily be words alone, but can be shown where the party, if duty-bound to disclose, 

intentionally suppresses material facts to create a false impression to the other party.” M & D, 

Inc, 231 Mich App at 25. 

 It is undisputed that on October 8, 2008, unbeknownst to Carter and Fuller, Kimple filed 

a lawsuit in Mexico seeking a $655,500 commission from Arimex Mexico. Kimple and Ogden 

then engaged in a scheme that resulted in Kimple acquiring title to the Cabo property. Then, on 

January 15, 2009, Fuller signed the Settlement Agreement on behalf of Arimex Mexico that 

essentially ratified the unsavory actions of Kimple and Ogden. Fuller admitted that he did not 

inform Carter of the Settlement Agreement, nor did he request Carter’s consent before signing 

the agreement. When Carter discovered in May 2009 that a portion of the Cabo property had 

been conveyed by Ogden to Kimple six months earlier, he contacted Fuller. Fuller admits on 

appeal that at this time he did not tell Carter about the lien that Fuller believed he had earlier 

granted to Ogden and Kimple. A chain of emails between Carter and Fuller sent in June and July 

2009 support a finding that Fuller deceived Carter regarding the Settlement Agreement he had 
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signed in January 2009. Carter repeatedly inquired about pursuing an action against Kimple and 

Ogden to regain title to the property. In response, Fuller refused to cooperate in any such efforts, 

reiterated his distrust of Carter, and suggested that his interests were more aligned with Kimple 

and Ogden. Carter specifically stated that nothing was owed to Kimple and Ogden. In reply, 

Fuller disagreed. Entirely absent from the emails was any reference by Fuller to the Settlement 

Agreement that he had signed in January 2009. 

 It is apparent from this evidence that Fuller deceived and intended to continue deceiving 

Carter about the January 2009 Settlement Agreement. Moreover, Fuller did not simply remain 

silent, he continued the discourse regarding the issue over the course of several weeks during 

which time Carter took no action to regain possession of the property. Finally, in August 2009, 

Carter filed an action on behalf of Arimex Mexico against Kimple to regain possession of the 

property. Shortly thereafter, Fuller entered into what he testified was a side-deal with Kimple 

and Ogden that included an agreement that upon the sale of the property, Fuller would personally 

receive a million dollars, absent any monies flowing to Arimex America or Mexico, DC Mex, or 

Carter. In addition to this Side Agreement, Fuller also signed a document that would have 

effectively withdrawn the lawsuit Carter had initiated on Arimex Mexico’s behalf to restore 

ownership of the property. Fuller candidly admitted in his deposition that he signed this 

document because he had the Side Agreement with Kimble and Ogden. Ultimately, a Mexican 

appellate court concluded that the Arimex Mexico lawsuit, initiated by Carter, was time-barred 

because it was not brought within 15 days of January 15, 2009, the day Fuller executed the 

Settlement Agreement and the date by which Fuller became aware of the suit filed by Kimple for 

his commission. 

 Considering all of this evidence, even when viewed in a light most favorable to 

defendants as required under MCR 2.116(C)(10), plaintiff established as a matter of law an intent 

to deceive, detrimental reliance, and a causal connection between Fuller’s actions or silence and 

loss of the property. Defendants maintain that there was no intent to deceive or fraudulent intent 

because Fuller had not known about the Termination Agreement waiving the right to a 

commission and revoking the powers of attorney and because he thought that the Settlement 

Agreement merely pertained to a lien, not ratification of Ogden and Kimple’s scheme. 

Defendants’ argument essentially demands, improperly so, that we examine the Termination 

Agreement and Settlement Agreement in a vacuum and out of context, absent consideration of 

associated actions and events, including Fuller’s silence in emails relative to the Settlement 

Agreement when Carter was voicing contemplation of a lawsuit to recover the property, Fuller’s 

entry into the Side Agreement that completely froze out Carter, and Fuller’s execution of a 

document attempting to secretly withdraw the suit Carter had initiated on behalf of Arimex 

Mexico. When examining the whole picture, reasonable minds would not differ that Fuller 

engaged in fraudulent conduct with an intent to deceive. Further, the undisputed facts revealed 

that as a result of Fuller’s actions, Carter delayed taking measures that could have preserved 

Arimex Mexico’s ability to recover the property and that such delay ultimately resulted in 

Kimple maintaining title to the property. Thus, detrimental reliance and a causal connection 

were established. Even defendants admit in their brief on appeal that the Mexican appellate 
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court found in Kimple’s favor based on the Settlement Agreement, resulting in the loss of the 

property.3

 

 Next, defendants argue that any contractual duties of disclosure were waived by Carter’s 

own allegedly improper actions related to the Cabo property, e.g., selling lots without Fuller’s 

knowledge. Defendants do not provide any authority for this proposition, but simply cite general 

contract principles regarding the manner in which written contracts can be modified. Defendants 

appear to be asserting that because plaintiff allegedly took unilateral actions early in the land 

development process, this somehow amounted to a mutual agreement to modify the contractual 

obligations of the parties. This issue was not specifically included in defendants’ statement of 

the issues presented and, therefore, it is not properly before this Court. MCR 7.212(C)(5). 

Further, to the extent that defendants discuss this issue, they have not clearly explained how 

plaintiff’s alleged actions amounted to a mutual agreement to modify the terms of the Operating 

Agreement. Consequently, we deem this issue abandoned. Yee v Shiawassee Co Bd of 

Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002). Moreover, the record does not 

contain “clear and convincing evidence” of conduct amounting to a waiver or modification of the 

terms of the Operating Agreement. Quality Prod & Concepts Co v Nagel Precision, Inc, 469 

Mich 362, 374; 666 NW2d 251 (2003). 

 To the extent that defendants are also arguing unclean hands, “[a] party seeking the aid of 

equity must come in with clean hands.” McFerren v B & B Investment Group, 253 Mich App 

517, 523; 655 NW2d 779 (2003). The clean hands doctrine closes the door of equity to a party 

tainted with inequitableness or bad faith with respect to the matter in which the party seeks relief. 

Id. at 523-524. The clean hands doctrine is rooted in the historical concept that courts of equity 

are vehicles for enforcing the requirements of conscience and good faith. Isbell v Brighton Area 

Schools, 199 Mich App 188, 190; 500 NW2d 748 (1993). Having unclean hands can bar a 

plaintiff from receiving equitable relief. Id. Given that this case primarily involves an award of 

money damages, i.e., legal relief and not equitable relief, the doctrine is inapplicable. See 

Waldorf v Zinberg, 106 Mich App 159, 165; 307 NW2d 749 (1981) (“defendants may not raise 

the equitable defense of unclean hands as to plaintiffs' request for a determination of their legal 

rights”). Furthermore, defendants have not adequately developed or briefed the argument, and 

we deem it abandoned. Yee, 251 Mich App at 406. In connection with this argument, we find 

interesting the following passage contained in defendants’ appellate brief: 

 

3

 On the issue of causation, defendants contend that there was no evidence establishing that 

Carter would have been successful in the Mexican lower court even absent the 15-day statute of 

limitations contained in the Settlement Agreement, considering that the Mexican lower court 

found in Arimex Mexico’s favor merely because service was not proper. This argument ignores 

the fact that the Termination Agreement indisputably waived any commission claim by Kimple 

and Ogden; therefore, absent execution of the Settlement Agreement and Fuller’s accompanying 

deceptions, Arimex Mexico could certainly have succeeded on the merits in the Mexican 

litigation. Moreover, we fail to see the relevance with respect to why the Mexican lower court 

found in favor of Arimex Mexico; the bottom line is that the court had restored the property to 

Arimex Mexico, which ruling was later reversed on a ground that was of Fuller’s making. 
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 Although anyone reading this account would have to be left shaking his or 

her head in disbelief at the foolishness or lawlessness of just about everyone that 

had any dealings with the Property, nothing that Fuller did was out of keeping 

with the course of dealings, or pattern of conduct that Carter had already 

established between the two of them. 

 This is nearly a concession on defendants’ part that Fuller engaged in wrongdoing in 

response to or retaliation of Carter’s alleged wrongdoing; nothing precluded Fuller or Affordable 

Land from suing plaintiff or Carter for wrongdoing, but an action has apparently never been 

pursued. 

 For their next claim of error, defendants contend that because all of Fuller’s actions were 

on behalf of Arimex Mexico, plaintiff cannot sustain a claim based on violations of the Arimex 

America Operating Agreement. We first note that because we have affirmed the silent fraud 

cause of action, which in itself would support the conditional consent award of $2.5 million in 

money damages, this issue is, for the most part, effectively moot. However, we shall entertain 

the argument. 

 In count I of its complaint, plaintiff alleged that defendants engaged in illegal, fraudulent, 

and willfully unfair and oppressive conduct toward Arimex America and its member, plaintiff 

DC Mex. Plaintiff relied on the Michigan Limited Liability Company Act, MCL 450.4101 et 

seq., and specifically, MCL 450.4515(1), which permits a member of a limited liability company 

to bring an action in circuit court to establish that acts of the managers or members were “illegal 

or fraudulent or constitute willfully unfair and oppressive conduct toward the limited liability 

company or the member.” In Count II of plaintiff’s complaint, it alleged that defendant Fuller 

violated Articles 7.1, 7.2, and 7.5 of the Operating Agreement applicable to the Arimex America 

joint venture. Article 7.2(b) specifically precludes a manager from taking “any action that would 

make it impossible to carry out the purposes of the Company.” Further, the Arimex America 

Operating Agreement precluded a manager from selling, exchanging, leasing, or transferring all 

or substantially all of the assets of the company without calling a meeting of the members. 

Defendants assert that these claims must fail as a matter of law because every action Fuller took 

was on behalf of Arimex Mexico. Defendants also argue that claims based on the Arimex 

America Operating Agreement are legally unsupportable because Arimex America never had an 

ownership interest in the Cabo property. Defendants reason that because Fuller was acting solely 

on behalf of Arimex Mexico, his conduct could not also constitute a violation of the Arimex 

America Operating Agreement. We disagree. 

 We note at the onset that this argument is being raised for the first time on appeal and, 

further, defendants have not provided any legal authority for their position. “This Court will not 

search for authority to sustain or reject a party’s position. The failure to cite sufficient authority 

results in the abandonment of an issue on appeal.” Hughes v Almena Twp, 284 Mich App 50, 

71-72; 771 NW2d 453 (2009) (citation omitted). In any event, defendants have not established 

the factual predicate for their argument. Defendants have not established that Fuller’s actions 

were solely on behalf of Arimex Mexico, and not on behalf of Arimex America. 

 The following facts are undisputed. Arimex America was formed as a joint venture 

between Fuller’s limited liability company, Affordable Land, and Carter’s limited liability 
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company, DC Mex. Fuller was named the manager of Arimex America. The purpose of the 

joint venture, i.e., Arimex America, was to purchase and develop specific property located in 

Cabo San Lucas, Mexico. As part of the joint venture, Carter and Fuller formed Arimex Mexico, 

a Mexican Company. It is also undisputed that Arimex America held the majority ownership 

interest in Arimex Mexico. Based on these facts, it is clear that every action Fuller took was 

taken on behalf of both Arimex America and Arimex Mexico, as Arimex Mexico was only 

formed to facilitate the objectives of the Arimex America joint venture. Thus, we conclude that 

defendants’ argument is without merit and unsupported by the factual record. 

 Finally, defendants argue that, in addition to erring in granting plaintiff’s motion for 

partial summary disposition, the trial court erred in not granting summary disposition in their 

favor. Pursuant to MCR 2.116(I)(2), summary disposition is properly granted to the opposing 

party if it appears to the court that the nonmoving party, rather than the moving party, is entitled 

to judgment. Because we affirm the trial court’s grant of partial summary disposition in favor of 

plaintiff on the question of liability, we also affirm the trial court’s denial of defendants’ motion 

for summary disposition.4

 Affirmed. Having fully prevailed on appeal, plaintiff is awarded taxable costs pursuant 

to MCR 7.219. 

 

/s/ Michael J. Talbot 

/s/ William B. Murphy 

/s/ Elizabeth L. Gleicher 

 

4

 At the end of their brief, defendants make a cursory, two-sentence argument that Fuller was 

authorized by a 2007 power of attorney to take unilateral actions, as reflected in the minutes of a 

shareholders’ meeting, and therefore “none of plaintiff’s claims should be upheld.” This 

argument is insufficiently briefed and thus abandoned. Yee, 251 Mich App at 406. Further, any 

assumed authority to take unilateral actions on behalf of a company certainly had a fiduciary 

aspect to it and clearly did not authorize the perpetration of fraud and acts of self-dealing.