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STATE OF MICHIGAN 

COURT OF APPEALS 

PATRICK J. MCCOURT, 

 Plaintiff-Appellant, 

UNPUBLISHED 

March 30, 2017 

v No. 330766 

Gratiot Circuit Court 

KENNETH C. FOWLER, PATRICK J. 

BERARDO, RICHARD W. BARCH, CULLEN 

DUBOSE, CRHC, INC., and PINE VILLA 

LIMITED DIVIDEND HOUSING 

ASSOCIATION, 

LC No. 13-011825-CZ 

 Defendants-Appellees. 

Before: HOEKSTRA, P.J., and SAAD and RIORDAN, JJ. 

PER CURIAM. 

 This is the second time this case has been before this Court. In our May 12, 2015 

opinion, this Court reversed the trial court’s grant of summary disposition under MCR 

2.116(C)(8) in favor of defendants and remanded for further proceedings. On remand, the trial 

court granted defendants’ subsequent motion for summary disposition pursuant to MCR 

2.116(C)(10). For the reasons provided below, we affirm. 

 The pertinent facts are reproduced from our 2015 opinion: 

 Defendant Pine Villa Limited Dividend Housing Association (“Pine 

Villa”) is a limited partnership formed under the laws of the state of Michigan. 

The remaining individual defendants and defendant CRHC, Inc. (“CRHC”) are 

present or former general partners in Pine Villa. According to the complaint, 

plaintiff was a limited partner of Capital Housing Partners-XCVIII (“CHP-98”) 

“at all times pertinent to these proceedings.” CHP-98 was formed as a District of 

Columbia limited partnership. The complaint further alleged that CHP-98 was a 

limited partner of Pine Villa “[a]t all times pertinent to these proceedings.” Thus, 

plaintiff was a limited partner of a limited partner of Pine Villa. 

 Plaintiff alleged in his complaint that Pine Villa owned and managed real 

property in the form of apartment buildings in Alma, Michigan in Gratiot County. 

Plaintiff also alleged that defendant Kenneth C. Fowler was the managing general 

partner of Pine Villa. Plaintiff alleged that Pine Villa reinvested excess revenues 
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in the partnership and accumulated a repair and maintenance reserve of 

approximately three million dollars. Plaintiff alleged that, once the mortgage debt 

was paid and the property was not encumbered, the general partners failed to offer 

the project for sale or refinance the project so as to return to the limited partners 

their investment. Further, plaintiff alleged that Fowler and the other individual 

defendants, in their capacity as general partners of Pine Villa, caused the entirety 

of the reserve fund to be expended on improvements to the property. The general 

partners then informed CHP-98 that it and its limited partners would suffer 

adverse tax consequences as the result of the expenditure of the reserve fund and 

offered to purchase CHP-98’s interest in Pine Villa; the majority of CHP-98’s 

partners approved the sale of CHP-98’s interest in the fall of 2011, although 

plaintiff voted against it. 

 Plaintiff filed suit on August 12, 2013. Plaintiff brought the action in his 

derivative capacity as a limited partner of CHP-98, pursuant to MCL 449.2001. 

Plaintiff alleged that defendants’ conduct in “vastly undervaluing the value of the 

project” and raising the specter of adverse tax consequences enabled them to 

obtain CHP-98’s interest at an unfair price, contrary to their fiduciary obligations. 

Plaintiff also alleged that defendants had breached the partnership agreement and 

breached their statutory duties to CHP-98 under Michigan’s Revised Uniform 

Limited Partnership Act (RULPA), MCL 449.1101 et seq. CHP-98’s interest, and 

therefore plaintiff’s indirect interest, in Pine Villa was eliminated as the result of 

the sale. [McCourt v Fowler, unpublished per curiam opinion of the Court of 

Appeals, issued May 12, 2015 (Docket Nos. 319772 & 319926), slip op, pp 1-2.] 

 This Court reversed the trial court grant of defendants’ motion for summary disposition 

brought under MCR 2.116(C)(8) because plaintiff adequately pleaded that “ ‘at all times 

pertinent to these proceedings’ he was a limited partner of CHP-98.” Id. at 4-5. However, this 

Court noted that 

[s]hould it be determined through additional evidence that in fact CHP-98 did not 

exist at the time suit was filed, or that plaintiff was not a member of CHP-98 at 

that time, it may become appropriate to consider that evidence on a motion for 

summary disposition pursuant to MCR 2.116(C)(10). [Id. at 5.] 

 After our remand, defendants moved for summary disposition pursuant to MCR 

2.116(C)(10) and argued that plaintiff could not sustain his lawsuit because he was not a member 

of CHP-98 at the time the action was filed. Defendants contended that plaintiff could not have 

been a member of CHP-98 in August 2013 when he filed the instant complaint because CHP-98 

did not exist at that time and instead was revoked, at the very latest, in September 2012. In 

support of their assertions, defendants provided (1) a copy of CHP-98’s 1065 tax return for 2012, 

which was marked as a “Final return” and (2) records from the District of Columbia that show 

CHP-98’s status as “revoked” effective September 4, 2012. 

 In response, plaintiff argued that he necessarily was a member of CHP-98 when he filed 

his complaint in August 2013 because, at that time, he had not been distributed his final 
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partnership distribution. In support, plaintiff submitted a copy of a check dated August 6, 2014, 

which was from CRI, Inc. and made out to plaintiff in the amount of $62,166.61. 

 In a reply/supplemental brief, defendants acknowledged that a check was issued to 

plaintiff in August 2014 but noted that the check was not issued by CHP-98. Thus, the existence 

of the check lacked any legal significance. Further, defendants provided the affidavit of Michael 

Murphy, who was a Senior Vice President of CRI, Inc. Murphy stated that, at one time, CRI was 

the general partner of CHP-98 and as part of its duties, it distributed the proceeds of the 

December 31, 2011 transaction to CHP-98’s limited partners, including plaintiff. Two checks 

were issued to plaintiff, dated February 28, 2012, and April 10, 2012, totaling $62,166.61. 

Murphy explained that plaintiff never cashed or deposited the checks and in July 2014, plaintiff 

asked that a new check be issued. As a result, a new check was issued for $62,166.61 on August 

6, 2014—the same check plaintiff relies on to create a question of fact. 

 The trial court found that there was no question of fact related to plaintiff’s status as a 

member of CHP-98 at the time he filed his complaint. The court found that plaintiff could not 

have been a member of CHP-98 at the time plaintiff filed his complaint because the evidence 

showed that CHP-98 did not exist at that time. On this basis, the trial court granted defendants’ 

motion for summary disposition. 

I. STANDARD OF REVIEW 

 We review a trial court’s decision on a motion for summary disposition de novo. West v 

Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). A motion brought under MCR 

2.116(C)(10) tests the factual sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109, 

120; 597 NW2d 817 (1999). Under this subrule, a “court considers affidavits, pleadings, 

depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the 

light most favorable to the party opposing the motion.” Id. The motion is properly granted if (1) 

there is no genuine issue of material fact and (2) the moving party is entitled to judgment as a 

matter of law. West, 469 Mich at 183. 

II. ANALYSIS 

 On appeal, plaintiff argues that the trial court erred because he presented evidence to 

create a question of fact whether CHP-98 was in existence at the time he filed his lawsuit. We 

disagree. 

 MCL 49.2001 allows for a limited partner to 

bring an action in the right of a limited partnership to recover a judgment in its 

favor if general partners with authority to do so have refused to bring the action or 

if an effort to cause those general partners to bring the action is not likely to 

succeed. 

MCL 449.2002 provides that in order for someone to sustain such a derivative action on behalf 

of a limited partnership, the plaintiff, among other things, “must be a partner at the time of 

bringing the action.” Plaintiff filed his suit as a derivative action on behalf of partnership CHP98 on August 12, 2013. 
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 “In presenting a motion for summary disposition [under MCR 2.116(C)(10)], the moving 

party has the initial burden of supporting its position by affidavits, depositions, admissions, or 

other documentary evidence.” Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 

(1996). When defendants moved for summary disposition this latest time under MCR 

2.116(C)(10), they alleged that plaintiff’s suit must be dismissed because, contrary to MCL 

449.2002, he was not (and could not have been) a member of CHP-98 at the time he filed his 

lawsuit in August 2013. Specifically, defendants alleged that CHP-98 had ceased to exist and, 

therefore, it was impossible for anyone to have been a member, well before plaintiff filed his 

complaint. To support their assertion, defendants submitted documentary evidence that 

consisted of (1) a copy of CHP-98’s 1065 tax return for 2012, which was marked as a “Final 

return” and (2) records from the District of Columbia that show CHP-98’s status as “revoked” 

effective September 4, 2012. 

 Having met its initial burden to support its motion for summary disposition, “[t]he burden 

then shifts to the opposing party to establish that a genuine issue of disputed fact exists.” Id. 

Here, in response to defendants’ motion, plaintiff submitted a single piece of evidence: a copy of 

a check dated August 6, 2014, that was issued to him from CRI in the amount of $62,166.61. 

Plaintiff asserts that this check was a final disbursement of partnership funds and that, because 

the check was issued in August 2014, it necessarily follows that CHP-98 had not ceased to exist 

and was still in existence through at least August 2014, which covered the time he filed his 

lawsuit. 

 We hold that plaintiff has failed to provide sufficient evidence to create a question of fact 

on this issue. Defendants provided evidence that tends to show that CHP-98 ceased to exist by 

September 4, 2012, which was almost a year before plaintiff filed his complaint. Thus, the 

evidence also shows that plaintiff could not have been a member of CHP-98 after September 

2012. Plaintiff claims that the check shows that CHP-98 was in existence well after he filed his 

complaint because the check was “issued” by CHP-98. But that assertion is not supported by the 

check. The check on its face clearly shows that it was issued by CRI, not CHP-98. Indeed, 

CHP-98’s name does not appear anywhere on the check. While there was evidence that CRI had 

been a general partner of CHP-98 while CHP-98 was in existence, the mere fact that the general 

partner issued the check does not equate to CHP-98 still being in existence at the time the check 

was issued. Quite simply, plaintiff had the burden to offer evidence that he was a partner of 

CHP-98 at the time he filed his complaint, but the only piece of evidence he submitted—the 

check issued by CRI—does not prove that. Accordingly, the trial court properly granted 

defendants’ motion for summary disposition under MCR 2.116(C)(10).1

 

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 We also reject plaintiff’s somewhat hard-to-follow position that whether CHP-98 existed at the 

time he filed his complaint is not relevant. While he is correct that the key is whether plaintiff 

was a member of CHP-98 at the time he filed his complaint, he fails to acknowledge that if CHP98 did not exist at that time, then, a fortiori, he also was not a member at that time. 
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 Affirmed. Defendants, as the prevailing parties, may tax costs pursuant to MCR 7.219. 

/s/ Joel P. Hoekstra 

/s/ Henry William Saad 

/s/ Michael J. Riordan