-1- 

### 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Plaintiff-Appellee, UNPUBLISHED May 5, 2015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: T ALBOT , C.J., and M URPHY and G LEICHER , JJ.

P ER C URIAM

.

Defendants appeal as of right a conditional consent judgment t hat preserved defendants’ right to appeal the trial court’ s earlier order granting plaint iff partial summary disposition on the question of liability. Because we conclude that the trial cour t did not err when it granted partial summary disposition in plainti ff’s favor, we affirm the judgmen t of the trial court.

This action arises out of a failed property development ventur e in Mexico. Plaintiff, DC Mex Holdings, L.L.C. (“DC Mex”), is an Arizona limited liabilit y company owned by David Carter. Defendant, Affordable L and, L.L.C. (“Affordable Land”) , is a Michigan limited liability company owned by defendant Dale Fuller. In December 2006, Cart er and Fuller entered into a joint venture whereby their two companies, DC Mex and Affordabl e Land, agreed to form a limited liability company named A rimex America, L.L.C. (“Arimex America”). DC Mex and Affordable Land each owned a 50 percent interest in Arimex Amer ica. The purpose of the joint venture was to develop land in M exico. 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 Mexic o”). Arimex America held nearly a 100% ownership int erest in Arimex Mexico.

In late 2006, with the aid of real estate brokers, Eddie Lee O gden and Dan Kimple, Arimex Mexico purchased real property near Cabo San Lucas, Mexi co (the “Cabo property” or “property”). After the purchase of the Cabo property, Arimex M exico entered into an Irrevocable Development, Sales, and Marketing Services Agreemen t (“Services Agreement”) with Ogden and Kimple on February 12, 2007. Pursuant to this S ervices Agreement, Ogden and-2- Kimple would receive a 15 percen t commission on any future sale s of the Cabo property. Ogden and Kimple were also granted powers of attorney through the Services Agreement. Without Fuller’s knowledge or consent, C arter executed the Services Agr eement as the representative of

Arimex Mexico.

In December 2007, Kimple and Ogde n located a buyer for a porti on of the Ca bo property, Tokase Properties, S de RL de CV (“Tokase”), and a purchase/dev elopment agreement was reached. Apparently, no translated version of this agreement i s 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 so ld outright to Tokase, with th e remaining one-third to be placed into a contemplated development trust, for which Tokase would s erve as developer and seller of the trust-held land. As part of the overall arrangement, it wa s agreed that Ogden and Kimple’s Services Agreement with Arimex Mexico would be terminated and t hat Ogden and Kimple

would enter into a different c ommission agreemen t with Tokase. Consequently, Arimex Mexico, Kimple, and Ogden mutually agreed in writing to terminate the S ervices Agreement. The Termination Agreement specifically provided that Ogden and Kimp le waived any claim for outstanding commissions and thattheir powers of attorney to ac t 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. How ever, 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 representat ive, attorney Jonathan Pikoff , signed the Termination Agreement on behalf of Arimex Mexico. Fuller specifically test ified 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 a greement with Arimex Mexico, given allegations of a breach and the inability of Arim ex Mexico to cohesively negotiate issues that arose between it and Tokase, where Fuller and Carte r presented conflicting positions to Tokase. Although Tokase cancelled the trust-related develop ment 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 p roperty. Thus, ultimately, Tokase became the owner of two-thirds of the Cabo property and Arimex Mexico retained onethird of the property; it is thi s one-third portion of the Cabo property that is pertinent to the instant dispute and about which t he remainder of our discussionconcerns.

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-r evoked power of attorney (grant ed by the Services Agreement but revoked by the Termination Ag reement) to settle the lawsuit on behalf of Arimex Mexico. Then, it appears that Ogden, purportedly as an Arimex Mexico re presentative, conveyed to his partner Kimple the one-third por tion of the Cabo property still owned by Arimex Mexico as payment on the $655,550 judgment. Carter and Fuller were unawa re of the Kimple commission lawsuit and of the Ogden transfer of title when it occurred. A ll parties agree that Kimple and-3- 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. A ccording to Fuller, Ogden requested that Fuller, on behalf of Arimex Mexico, sign a“lien” on the Cabo property,

which would also include an ac knowledgement that Ogden and Kimp le were still owed $655,500 in commissions. Fuller agreed t o this request and, further, he did not inform Carter of the events. Thereafter, Ogden sent Fuller a do cument to sign. Despite the fact that it was written in Spanish,

that Fuller did not read or unders tand 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 com mission 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 acknowl edgment of lien, but rather, a Settlement Agreement. For all practical purposes, this Settlem ent Agreement appeared to be a ratification by Fuller of the previous actions taken by Ogden a nd Kimple, including the conveyance of the property, and it also contained a 15-day stat ute of limitations. Fuller did not inform Carter of this agreement, nor did he request Carter’s co nsent before signing the

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

In May 2009, during a title search, Carter discovered that Ari mex Mexico’s portion of the Cabo property had been conveyed by Ogden to Kimple six months e arlier. Carter immediately investigated the possibility of initiating litigation in Mexico against Kimple and Ogden. Fuller refused to cooperate with Carter’s efforts. Further, Fuller di d 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 un beknownst 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, Kim ple and Ogden would sell the Cabo property, which was now titled in Kimple’s name, and retai n $655,000 to cover their “lien.” They would then pay off others who had outstanding lie ns 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 own ed 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, F uller also signed on October 8, 2009, a document, written in Spanish, that would eff ectively withdraw the lawsuit

Carter had initiated on Arimex Mexico’s behalf to restore owner ship of the property. Fuller did not advise Carter of this event. Fuller testified that he sign ed 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 progresse d to the point where a Mexican trial court actually reversed the transfer of title to Kimple. Howev er, Kimple apparently appealed this ruling and a Mexican appellate court found on June 24, 2010, th at Fuller’s execution of the January 2009 Settlement Agreement on behalf of Arimex Mexico tr iggered the running of the 15-day limitations period that expired before Carter filed the lawsuit to set aside the Ogden--4- 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 courtwas based on the existence of the January 15, 2009 Settlement Agreement signed by defendant Fulle r. As a result of these events, it appears that the Mexican cour t system has now conclusively d etermined 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 alleg ed fraud, willfully unfair and oppressive conduct in violation of MCL 450.4515(1) of the Michi gan 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 disposi tion 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 wh ether defendants violated the terms of the Operating Agreement. In response to plaintiff’s m otion, defendants argued that: (1) the motion was premature because discovery was continuing; (2) plaintiff lacked standing to

assert its claims because the e ntity, DC Mex, was not formed un til after the operative events took place; (3) plaintiff’s oppression claim was both time-barred an d precluded on account of plaintiff’s unclean hands; (4) with regard to the claim of brea ch of the Operating Agreement, questions of fact existed with res pect 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 pla intiff.

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 dispositio n was premature because discovery was still open. The c ourt noted that further discove ry would not yield additional

relevant facts. The court also r ejected defendants’ claim that plaintiff lacked standing to initiate the suit. The court found that there was sufficient evidence p resented that DC Mex was organized in December 2006, well before the critical events occ urred. Similarly, the court rejected defendants’ assertion that plaintiff’s claims were tim e-barred. With respect to plaintiff’s oppression claim, the court found that there was no genuine iss ue of material fact that plaintiff had conclusively established t hat Fuller’s conduct “resulted in the loss of the Cabo property, as the Mexican Court of Appeals reve rsed the trial court’s decisio n to return the Cabo property to

Mr. Carter and Defendant Fulle r 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 spe cifically find that defendants’ actions constituted a breach of the parties’ agreement. Instead, it only seemed to specifically ad dress defendants’ assertion that plaintiff could not establish that it had been damaged by defen dants’ alleged conduct. In this regard, the court reiterated its finding that it was “defendantFuller’s conduct that precipitated the loss of the Cabo property, as th e Mexican Court of Appeals base d its decision on the January 15, 2009 Settlement Agreement.” With respect to plaintiff’s claim that defendants’ conduct constituted silent fraud, the cou rt noted that defendants had a legal duty to disclose pertinent information to plaintiff related to the Cabo property because “ Arimex America’s Operating-5- Agreement obligated each member and manager to disclose relevan t information about the disposition of Arimex America’s sole asset.” The court then fo und that Fuller did not disclose to plaintiff material information regarding the January 15, 2009 S ettlement 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’ moti on for reconsideration was considered and denied by the trial court on November 9, 2012. 1 Following the denial of reconsideration, thi s appeal ensued.

For their first argument on appe al, defendants contend that th e 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 bel ow; 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. I n 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 ru ling and on a woefully incomple te and unsworn translation of the Mexican court’s opinion. Finally, defendants argued, for t he 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 Operatin g Agreement’ to uphold

Plaintiff’s silent fraud claim.” Defendants argued that pursua nt to the economic loss doctrine, an action in tort may not be maintained where a contractual agreem ent exists, unless a duty, separate and distinct from the contractual obligation is establ ished. In denying reconsideration, the trial court rejected defendants’ argument that the court im properly considered an incomplete

translation of the Mexican cour t’s opinion, noting that defendants did not object to the validity or substance of the translated porti on of the opinion, that the pa rties had agreed on the translator,

and that defendants had not sub mitted evidence supporting a dif ferent interpretation or the opinion translated in its entiret y. The court also rejected def endants’ objection to its

consideration of the Perez-Corr ea Affidavit interpreting the Me xican appellate court’s opinion.

The court noted that it did not r ely on the affidavit when rend ering its September 20, 2012 ruling. With respect to defendants’ claim that the trial court failed t o consider plaintiff’s unclean hands,

the court noted that defendants had not submitted evidence thatCarter 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 reject ed 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 eco nomic 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 t he doctrine.-6- Mich 211, 234; 507 NW2d 422 (1993) (“ Issues raised for the first time on appeal are not ordinarily subject to review.”). Regardless, on substantive re view, 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 t he 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 appro priate if there is no genuine issue regarding any material fact and the moving party is entit led 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 ex ists 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 inte rrelated fraud doctrines: (1) fraudulent misrepresentation, (2) innocent misrepresentation, and (3) sile nt fraud.” Barclae v Zarb, 300 Mich App 455, 476; 834 NW2d 100 (2013) (citation omitted). A c laim of fraudulent misrepresentation, also referre d to as actionable fraud, genera lly requires a showing that:

“(1) the defendant made a material representation; (2) the repr esentation was false; (3) when the defendant m ade the representation, the defe ndant knew that it was false, or made it reckless ly, without knowledge of its trut h as a positive assertion; (4) the defendant mad e the representation with the i ntention that the plaintiff would act upon it; (5) the plaintiff acted in relianc e 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 actioncan 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). S pecifically, for silent fraud, a plaintiff must prove that the de fendant knew of a material fact but concealed or suppressed the truth through false or misleading statements or actions with th e intent to deceive. Roberts v Saffell, 280 Mich App 397, 405; 760 NW2d 715 (2008). “A misrepresentati on need not necessarily be words alone, but can be shown where the party, i f duty-bound to disclose, intentionally suppresses material facts to create a false impre ssion to the other party.” M & D,
Inc, 231 Mich App at 25.

It is undisputed that on October 8, 2008, unbeknownst to Carte r and Fuller, Kimple filed a lawsuit in Mexico seeking a $655,500 commission from Arimex M exico. Kimple and Ogden then engaged in a scheme that resulted in Kimple acquiring titl e to the Cabo property. Then, on January 15, 2009, Fuller signed the Settlement Agreement on beh alf 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 C arter’s consent before signing the agreement. When Carter discovered in May 2009 that a porti on of the Cabo property had been conveyed by Ogden to Kimple six months earlier, he contact ed 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 c hain of emails between Carter and Fuller sent in June and July 2009 support a finding that Fuller deceived Carter regarding th e Settlement Agreement he had-7- signed in January 2009. Carter repeatedly inquired about pursu ing an action against Kimple and Ogden to regain title to the pr operty. In response, Fuller ref used to cooperate in any such efforts, reiterated his distrust of Carter, and suggested that his inter ests 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 refe rence by Fuller to the Settlement Agreement that he had signed in January 2009.

It is apparent from this evidence that Fuller deceived and int ended 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 pr operty. Finally, in August 2009, Carter filed an action on behalf of Arimex Mexico against Kimpl e to regain possession of the property. Shortly thereafter, Ful ler entered into what he test ified was a side-deal with Kimple and Ogden that included an agr eement 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 Arime x Mexico’s behalf to restore ownership of the property. Fuller candidly admitted in his dep osition that he signed this document because he had the Side Agreement with Kimble and Ogde n. Ultimately, a Mexican appellate court concluded that the Arimex Mexico lawsuit, initi ated 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 M CR 2.116(C)(10), plaintiff establ ished as a matter of law an intent to deceive, detrimental reliance, and a causal connection betwe en Fuller’s actions or silence and loss of the property. Defendant s maintain that there was no in tent to deceive or fraudulent intent because Fuller had not known about the Termination Agreement wa iving the right to a commission and revoking the powers of attorney and because he t hought that the Settlement Agreement merely pertained to a lien, not ratification of Ogden and Kimple’s scheme. Defendants’ argument essentially demands, improperly so, that w e examine the Termination Agreement and Settlement Agreement in a vacuum and out of conte xt, absent consideration of associated actions and events, including Fuller’s silence in em ails 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 in itiated on behalf of Arimex Mexico. When examining the w hole picture, reasonable minds wou ld not differ that Fuller engaged in fraudulent conduct with an intent to deceive. Furth er, the undisputed facts revealed that as a result of Fuller’s actions, Carter delayed taking mea sures that could have preserved Arimex Mexico’s ability to recover the property and that such d elay ultimately resulted in Kimple maintaining title to the property. Thus, detrimental re liance and a causal connection were established. Even defendants admit in their brief on appe al that the Mexican appellate-8- 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 disclosu re 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 pro vide any authority for this pr oposition, but simply cite general contract principles regarding the manner in which written contr acts can be modified. Defendants appear to be asserting that because plaintiff allegedly took un ilateral actions early in the land development process, this somehow amounted to a mutual agreemen t to modify the contractual obligations of the parties. This issue was not specifically in cluded in defendants’ statement of the issues presented and, theref ore, it is not properly before this Court. MCR 7.212(C)(5). Further, to the extent that defe ndants discuss this issue, they have not clearly explained how plaintiff’s alleged actions amounted to a mutual agreement to m odify 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 rec ord 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 a re 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 m atter in which the party seeks relief.

Id. at 523-524. The clean hands doctr ine is rooted in the historic al concept that courts of equity are vehicles for enforcing the requirements of conscience and g ood faith. Isbell v Brighton Area

Schools , 199 Mich App 188, 190; 500 NW2d 748 (1993). Having unclean h ands can bar a plaintiff from receiving equitable relief. Id. Given that this case primarily involves an award of money damages, i.e., legal reli ef and not equitable relief, the doctrine is inapplicable. See Waldorf v Zinberg , 106 Mich App 159, 165; 307 NW2d 749 (1981) (“defendants may n ot raise the equitable defense of unclean hands as to plaintiffs' reques t for a determination of their legal rights”). Furthermore, defendants have not adequately developed or briefe d the argument, and

we deem it abandoned. Yee, 251 Mich App at 406. In connection with this argument, we fin d interesting the following passage contained in defendants’ appe llate brief:

3 On the issue of causation, defendants contend that there was n o evidence establishing that

Carter would have been successful in the Mexican lower court ev en 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 p roper. This argument ignores the fact that the Termination Agreement indisputably waived any commission claim by Kimple and Ogden; therefore, absent ex ecution of the Settlement Agreem ent 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 respec t to why the Mexican lower court found in favor of Arimex Mexico; the bottom line is that the co urt had restored the property to Arimex Mexico, which ruling was later reversed on a ground that was of Fuller’s making.-9- Although anyone reading this account would have to be left sha king his or

her head in disbelief at the f oolishness 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 en gaged in wrongdoing in response to or retaliation of C arter’s alleged wrongdoing; noth ing precluded Fuller or Affordable Land from suing plaintiff or C arter for wrongdoing, but an acti on has apparently never been pursued.

For their next claim of error, d efendants contend that because all of Fuller’s actions were on behalf of Arimex Mexico, plaintiff cannot sustain a claim ba sed on violations of the Arimex America Operating Agreement. We first note that because we hav e affirmed the silent fraud cause of action, which in itsel f would support the conditional consent award of $2.5 million in money damages, this issue is, for the most part, effectively mo ot. However, we shall entertain the argument.

In count I of its complaint, plai ntiff alleged that defendants engaged in illegal, fraudulent, and willfully unfair and oppressive conduct toward Arimex Ameri ca and its member, plaintiff DC Mex. Plaintiff relied on the Michigan Limited Liability Com pany 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 t he managers or members were “illegal

or fraudulent or consti tute willfully unfair and oppressive con duct 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, exchangin g, leasing, or transferring all or substantially all of the assets of the company without calli ng a meeting of the members.

Defendants assert that these claims must fail as a matter of la w because every action Fuller took was on behalf of Arimex Mexico. Defendants also argue that cla ims based on the Arimex America Operating Agreement are legally unsupportable because A rimex America never had an ownership interest in the Cabo pr operty. Defenda nts reason tha t because Fuller w as acting solely on behalf of Arimex Mexico, his conduct could not also constitu te a violation of the Arimex America Operating Agreement. We disagree.

We note at the onset that this argument is being raised for th e first time on appeal and, further, defendants have not pro vided any legal authority for t heir 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, d efendants have not established the factual predicate for their argument. Defendants have not established that F uller’s actions were solely on behalf of Arime x Mexico, and not on behalf of Ar imex America.

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

between Fuller’s limite d liability company, Affordable Land, an d Carter’s limited liability-10- company, DC Mex. Fuller was named the manager of Arimex Americ a. The purpose of the joint venture, i.e., Arimex America, was to purchase and develo p specific property located in Cabo San Lucas, Mexico. As part o f the joint venture, Carter a nd Fuller formed Arimex Mexico, a Mexican Company. It is also undisputed that Arimex America h eld 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 Ar imex Mexico was only formed to facilitate the objectives of the Arimex America joint venture. Thus, we conclude that defendants’ argument is wit hout merit and unsupported by the fa ctual record.

Finally, defendants argue that, in addition to erring in grant ing plaintiff’s motion for partial summary disposition, the trial court erred in not grant ing summary disposition in their favor. Pursuant to MCR 2.116(I)(2), summary disposition is pro perly granted to the opposing party if it appears to the court that the nonmoving party, rath er than the moving party, is entitled to judgment. Because we affirm the trial court’s grant of part ial summary disposition in favor of plaintiff on the question of liabi lity, we also affirm the tria l court’s denial of defendants’ motion for summary disposition. 4

Affirmed. Having fully prevailed on appeal, plaintiff is awar ded 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, defe ndants make a cursory, two-sent ence argument that Fuller was authorized by a 2007 power of atto rney to take unilateral actio ns, as reflected in the minutes of a shareholders’ meeting, and theref ore “none of plaintiff’s claim s 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 com pany certainly had a fiduciary aspect to it and clearly did not authorize the perpetration of fraud and acts of self-dealing.