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STATE OF MICHIGAN 

COURT OF APPEALS 

POLICE & FIRE RETIREMENT SYSTEM OF 

THE CITY OF DETROIT, 

 Plaintiff-Appellee, 

UNPUBLISHED 

February 14, 2017 

v No. 329048 

Wayne Circuit Court 

MICHAEL ABRAHAM LEIBOWITZ, LC No. 12-014242-CK 

 Defendant-Appellant. 

Before: STEPHENS, P.J., and SERVITTO and SHAPIRO, JJ. 

PER CURIAM. 

 Defendant appeals as of right the trial court’s order granting plaintiff’s motion for 

summary disposition pursuant to MCR 2.116(C)(10), and awarding plaintiff judgment against 

defendant in the amount of $10,131,250. The trial court ruled that plaintiff was entitled to pierce 

the corporate veil and hold defendant personally liable for a judgment debt owed to plaintiff by 

Invescor, Ltd. (“Invescor”), a company for which defendant was the president, chief executive 

officer (CEO), and sole shareholder. We reverse and remand to the trial court for further 

proceedings. 

I. FACTS AND PROCEEDINGS 

 Defendant is the former sole shareholder of the now-defunct corporation, Invescor. 

Invescor’s primary business was brokering “life settlement” transactions, in which the owner and 

insured of a life insurance policy would sell the policy to an investor (known as a “provider”), 

who would then pay the policy’s premiums in exchange for the policy’s death benefit. In 2008, 

defendant and plaintiff negotiated a loan agreement whereby plaintiff agreed to provide a loan 

investment to Invescor in the amount of $10,000,000 for purposes of expanding Invescor’s 

business. In 2010, Invescor defaulted on the loan and plaintiff brought an action against 

Invescor for breach of contract. In the course of discovery, plaintiff learned that Invescor had 

transferred substantial sums of monies to defendant, purportedly in repayment of a loan that 

defendant had made to Invescor before plaintiff’s involvement. Plaintiff also discovered that 

defendant charged substantial personal expenses to Invescor’s corporate credit account. Plaintiff 

added defendant as an individual party-defendant to this prior action. 

 Invescor did not plead or respond in the prior action, and the trial court entered a default 

judgment against Invescor and in favor of plaintiff in the amount of $10,131,250, for the unpaid 
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principal and interest owed by Invescor to plaintiff. The parties later stipulated to dismiss the 

prior action as to defendant, without prejudice, and plaintiff was permitted to refile an action 

against defendant. 

 Plaintiff then brought this action against defendant, stating a single count labeled as 

Breach of Contract – Piercing the Corporate Veil. Plaintiff alleged that defendant should be held 

personally liable for Invescor’s judgment debt because defendant did not regard Invescor as a 

corporate entity distinct from defendant, and instead used Invescor as a mere instrumentality to 

transfer substantial amounts of cash, including funds provided by plaintiff, to himself under the 

guise of repaying himself for his loans of personal funds to Invescor. Plaintiff also alleged that 

defendant deceived plaintiff regarding Invescor’s true financial status through deceptive accrualbased accounting practices, in violation of generally accepted accounting principles (GAAP). 

Specifically, plaintiff alleged that Invescor’s financial statements represented applications to sell 

life insurance policies to providers as inventory or accounts receivable, although these policies 

were not yet sold. Invescor categorized these policies according to the stage of the transaction, 

increasing the value as it came closer to a final sale. It adjusted the value of these assets to 

reflect that some policies would not sell, and it then would not receive a commission on the sale. 

Plaintiff contended that these were “phantom assets” that falsely portrayed Invescor as a 

profitable company. 

 Plaintiff moved for summary disposition under MCR 2.116(C)(10). Plaintiff argued that 

the financial documents it obtained from Invescor during the prior action revealed defendant’s 

fraudulent accounting and self-enrichment from Invescor’s assets. In response, defendant 

blamed the 2008 financial crisis for Invescor’s failure. He asserted that the seizure of the credit 

markets prevented providers from obtaining funds to buy life settlements. Defendant argued that 

summary disposition was not warranted because there remained genuine issues of material fact. 

He acknowledged that he sometimes charged personal expenses to his business account, and 

sometimes charged business expenses to his personal account, but offered his own and 

Invescor’s employees’ deposition testimony that he had instructed employees to adjust and 

reconcile his business accounts and personal note to Invescor to account for the charges. 

Defendant also argued that his listing of unsold policies was a legitimate procedure, which was 

required by LaSalle Bank when it previously made a loan to Invescor. Defendant further 

asserted that the financial documents provided to plaintiff during its due diligence investigation 

of Invescor disclosed the accounting procedure. Defendant also offered evidence that the money 

he received from Invescor was considerably lower than the substantial sums of his own money 

that he put into Invescor in an attempt to weather the financial crisis. 

 The trial court concluded that there was no issue of material fact that defendant used 

Invescor as a “mere instrumentality” or alter ego. The court rejected defendant’s assertion that 

he lost more money than he gained from his dealings with Invescor. In support of this 

conclusion, the court relied on plaintiff’s Exhibit UU, a document pertaining to defendant’s 

finances, which indicated that he owed “hundreds of thousands of dollars” to Invescor. The trial 

court did not address plaintiff’s allegations concerning “phantom assets,” but concluded that 

plaintiff would not have made the loan to Invescor if it had been aware of its true financial state. 

II. PIERCING THE CORPORATE VEIL 
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 This Court reviews a motion for summary disposition de novo. Summary disposition 

may be granted under MCR 2.116(C)(10) when “there is no genuine issue as to any material fact 

and the moving party is entitled to judgment . . . as a matter of law.” This Court must consider 

any evidence submitted by the parties and view that evidence in the light most favorable to the 

nonmoving party to determine whether a genuine issue of material fact exists. Maiden v 

Rozwood, 461 Mich 109, 118-120; 597 NW2d 817 (1999). A genuine issue of material fact 

exists when the record leaves open “an issue upon which reasonable minds might differ.” 

Debano–Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d 634 (2013) (quotation omitted). A

trial court’s decision whether to pierce the corporate veil is reviewed de novo “because of the 

equitable nature of the remedy.” Foodland Distrib v Al–Naimi, 220 Mich App 453, 456; 559 

NW2d 379 (1996). 

 “Michigan courts typically consider corporations legally distinct from their shareholders, 

even if a single shareholder owns all the stock.” Dep’t of Consumer & Indus Servs v Shah, 236 

Mich App 381, 393; 600 NW2d 406 (1999); Lakeview Commons v Empower Yourself, 290 Mich 

App 503, 509; 802 NW2d 712 (2010) (“the law treats a corporation as an entirely separate entity 

from its stockholders, even where one person owns all the corporation’s stock.”). “However, 

when this fiction is invoked to subvert justice, it may be ignored by the courts.” Foodland 

Distrib, 220 Mich App at 456. Generally, a court is warranted in disregarding the separate 

existence of a corporation where (1) the corporate entity is a mere instrumentality of another 

individual or entity, (2) the entity was used to commit a wrong or fraud, and (3) there is an unjust 

injury or loss to the plaintiff. Rymal v Baergen, 262 Mich App 274, 293-294; 686 NW2d 241 

(2004). “There is no single rule delineating when a corporate entity should be disregarded, and 

the facts are to be assessed in light of a corporation’s economic justification to determine if the 

corporate form has been abused.” Id. at 294. In Glenn v TPI Petroleum, Inc, 305 Mich App 698, 

716; 854 NW2d 509 (2014), this Court observed: 

Factors used by courts to determine the propriety of piercing the corporate veil 

include: (1) whether the corporation is undercapitalized, (2) whether separate 

books are kept, (3) whether there are separate finances for the corporation, (4) 

whether the corporation is used for fraud or illegality, (5) whether corporate 

formalities have been followed, and (6) whether the corporation is a sham. 

Laborers’ Pension Trust Fund v Sidney Weinberger Homes, Inc, 872 F2d 702, 

704-705 (CA 6, 1988). 

A. MERE INSTRUMENTALITY 

 Defendant denies that he used Invescor as a mere instrumentality for himself. He 

acknowledges that he sometimes charged personal expenses to corporate accounts, and 

sometimes used personal funds for business expenses, but he presented evidence that it was his 

practice to reconcile these charges to associate them with the proper accounts to maintain 

Invescor’s status as a separate entity. Plaintiff relies on unpublished decisions in which courts 

found that evidence of an individual party’s comingling of corporate and personal funds 

supported an action to pierce the corporate veil, and that evidence of practices of reconciling 
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personal and business expenses were insufficient to defeat a plaintiff’s attempt to pierce the 

corporate veil.1

 The cases cited by plaintiff merely establish that evidence of an individual 

party’s comingling of corporate and personal funds can provide factual support for a plaintiff’s 

claim that the corporation was used as a mere instrumentality by the individual party. However, 

they do not hold as a matter of law that evidence of such comingling of funds compels a finding 

that the corporate entity was used as a mere instrumentality of the individual party, or that 

evidence of practices by corporate and individual parties to reconcile personal and business 

charges by posting them to their proper accounts is irrelevant or cannot be considered in 

determining whether an individual party used a corporate entity as a mere instrumentality. The 

cases reinforce that where there are allegations that corporate funds were used to pay personal 

expenses, the question whether the corporation was used as the individual party’s mere 

instrumentality remains a question of fact. 

 We note that in two of the cases cited by plaintiff, the trial court decided the matter after 

conducting a bench trial, and the trial court was permitted to weigh all of the evidence and make 

findings on disputed issues of fact, which the appellate courts were then required to review for 

clear error. Teran v Rittley, 313 Mich App 197, 213; 882 NW2d 181 (2015). In contrast, in the 

present case the issue was presented in the context of a motion for summary disposition, and the 

trial court was not permitted to make findings of fact, but rather was required to view the 

evidence in a light most favorable to defendant to determine whether the evidence established a 

genuine issue of material fact. Maiden, 461 Mich at 118-120. Further, the trial court’s decision 

is not accorded any particular deference, but rather is reviewed de novo. Id. In another 

unpublished case cited by plaintiff, the trial court decided the matter in the context of a motion 

for summary judgment, but the trial court found no factual support for the defendants’ assertion 

that corporate funds were used to pay only directly incurred business expenses. In the instant 

case, defendant offered the deposition testimony of himself and other witnesses to support his 

claim that adjustments to Invescor’s accounts were regularly made whenever personal expenses 

were charged to corporate accounts, and thus that corporate funds were not ultimately used to 

pay defendant’s personal expenses. This evidence established a question of fact with respect to 

commingling of funds for purposes of determining whether defendant treated Invescor as an alter 

ego rather than a separate entity. 

 The trial court rejected defendant’s assertion that his losses in loans to Invescor were 

greater than the transfers of monies from Invescor to himself. The trial court relied on plaintiff’s 

Exhibit UU to support its finding that the evidence “shows that [defendant] owed Invescor 

hundreds of thousands of dollars as of December 31, 2009.” Plaintiff’s Exhibit UU consists of a 

one-page document entitled “Mike Leibowitz Balance Sheet As of December 31, 2009.” 

Plaintiff cited this document in support of its statement that “according to [defendant’s] personal 

financial records, he owes Invescor $781,000.” In this document, under the heading “ASSETS” 

and the subheading “Other Assets,” are the items (1) “Invescor LTD-Note Receivable,” with a 

 

1

 Although this Court’s unpublished decisions are not precedentially binding, MCR 7.215(C)(1), 

they may be considered instructive or persuasive. Paris Meadows, LLC v City of Kentwood, 287 

Mich App 136, 145 n 3; 783 NW2d 133 (2010). 
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corresponding amount of –$781,471.15; (2) “Invescor NB-Not Rec” with a corresponding 

amount of $5,785.13; (3) “Invescor Wholesale BD-Note Rec,” with a corresponding amount of 

–$75,000, and (4) “Note Receivable MAL Capital,” with a corresponding amount of $252,500. 

The sum of these figures is listed as “Total Other Assets,” with a corresponding amount of 

–$598,186.02. Defendant argues that this document is not competent evidence because plaintiff 

did not explain where it came from, who prepared it, or the purpose for which it was prepared. 

Defendant also asserts that Invescor’s financial records do not corroborate that he owed this debt 

to Invescor. Moreover, defendant asserts that Invescor’s financial records do not corroborate 

that he owed this debt to Invescor. Defendant also indicates that the document’s listing of 

negative figures as assets is a peculiarity that calls for explanation. 

 Defendant raises valid questions about the competency of plaintiff’s Exhibit UU to prove 

his indebtedness to Invescor in comparison to the monies that he allegedly infused into Invescor 

in an attempt to survive the financial crisis. However, defendant did not contend below that the 

document was a fabrication or inauthentic in any respect. Defendant is in the best position to 

know whether this document is an authentic copy of a document he provided to plaintiff, or a 

document compiled from data plaintiff received in discovery. If it was produced in discovery, 

defendant is also in the best position to interpret the document. Defendant neither challenged the 

document’s authenticity, nor offered an alternative explanation. The trial court did not 

acknowledge the questions surrounding plaintiff’s Exhibit UU, but merely cited it in support of 

its conclusion that defendant was heavily in debt to Invescor. Under these circumstances, we 

conclude that plaintiff’s Exhibit UU does not preclude a question of fact related to the dispute of 

whether defendant took more or less money out of Invescor than he put into it. 

 Plaintiff emphasizes that there were no formal loan agreements between defendant and 

Invescor, or between Invescor and the family members and business associates of defendant who 

received payments from Invescor. Although the timing of plaintiff’s transfers of funds to 

Invescor and Invescor’s transfers to defendant is suspicious, defendant offered sufficient 

evidence to establish a question of fact regarding the legitimacy of defendant’s dealings with 

Invescor, and whether they prove that defendant used Invescor as a mere instrumentality. 

 In sum, because defendant’s evidence establishes the existence of genuine issues of 

material fact regarding whether defendant used Invescor as a mere instrumentality, the trial court 

erred in granting plaintiff’s motion for summary disposition on its claim to pierce the corporate 

veil. 

B. COMMISSION OF A WRONG OR FRAUD ON PLAINTIFF 

 Defendant argues that the trial court also erred in finding that he used Invescor’s 

allegedly false corporate distinction to commit a wrong against plaintiff. Defendant contends 

that Invescor’s failure to pay a debt is insufficient to support the second element of piercing the 

corporate veil. We disagree. 

 The trial court cited Tredit Tire & Wheel Co, Inc v Regency Conversions, LLC, 636 F 

Supp 2d 598 (ED Mich, 2009), in support of its conclusion that Invescor’s breach of its contract 

with plaintiff was sufficient to establish a sufficient wrong against plaintiff. While we note that 

Tredit is not binding, because the Court’s decision was largely based on its reasoning, we will 
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review its analysis. In Tredit, the plaintiff in a breach of contract action against the defendant, 

Regency Conversions, sought to pierce the corporate veil to reach assets held by the defendant, 

WB Automotive Holdings (“WBAH”). WBAH moved for summary judgment for failure to state 

a claim on which relief can be granted. Id. at 600-601. Applying Michigan law, the federal 

court concluded that the plaintiff “alleged facts which, if proven, would permit the conclusion 

that Regency became a mere instrumentality of WBAH.” Id. at 602. The court also held that the 

plaintiff’s allegations satisfied the “fraud or wrong” element by alleging that the defendants 

breached the contract. The court held that breach of contract is sufficient to satisfy this element, 

regardless of whether the parent company perpetrated an actual fraud. Id., citing Herman v 

Mobile Homes Corp, 317 Mich 233; 26 NW2d 757 (1947). 

 We disagree with defendant’s argument that Tredit is distinguishable from the instant 

case because Tredit concerned a motion for summary judgment for failure to state claim on 

which relief can be granted. This procedural distinction is not material to the legal holding in 

Tredit that a corporate party’s breach of contract is legally sufficient to constitute the wrongful 

act necessary to establish the second requirement of piercing the corporate veil. Thus, the 

evidence that Invescor breached its loan agreement with plaintiff is sufficient to support the 

existence of a legally sufficient wrong necessary to establish the second element of piercing the 

corporate veil. Defendant did not offer any evidence to show that Invescor did not breach its 

contract with plaintiff, and thus failed to demonstrate a genuine issue of material fact regarding 

this element. 

 We reject defendant’s argument that the evidence fails to establish the second element 

because it was Invescor, not himself, who committed the breach of contract. This argument is 

misplaced because the pertinent inquiry is whether the entity was used to commit a wrong or 

fraud. Rymal, 262 Mich App at 293-294. In Green v Ziegelman, 310 Mich App 436, 458; 873 

NW2d 794 (2015), this Court stated: 

 The court . . . must determine whether the manner of use effected a fraud 

or wrong on the complainant. . . . In considering this element, it is not necessary 

to prove that the owner caused the entity to directly harm the complainant; it is 

sufficient that the owner exercised his or her control over the entity in such a 

manner as to wrong the complainant. . . . But it bears repeating that establishing 

an entity for the purpose of avoiding personal responsibility is not by itself a 

wrong that would warrant disregarding the entity’s separate existence. [Citations 

omitted.] 

Evidence that defendant manipulated Invescor in such a manner that Invescor was left without 

sufficient assets to meet its obligations to plaintiff would support a conclusion that the entity, 

Invescor, was used to commit a wrong. Thus, to the extent that plaintiff is able to prove that 

defendant used Invescor as a mere instrumentality, the second element of piercing the corporate 

veil, that defendant used his control over the entity to cause injury to plaintiff, would be 

established, given that there is no question of material fact that Invescor breached the loan 

agreements with plaintiff. 

C. UNJUST INJURY OR LOSS TO PLAINTIFF 
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 Defendant also argues that he presented evidence to establish a genuine question of fact 

regarding the third element of piercing the corporate veil, that the plaintiff sustained an unfair 

loss or injury. Rymal, 262 Mich App at 293-294. Plaintiff argues that defendant’s deceptive 

accounting practices, his misrepresentations about Invescor’s financial condition, and his 

transfers of Invescor’s assets to himself and his associates, are sufficient to show that it sustained 

an unjust loss as opposed to a failed investment. Defendant points out that plaintiff did not plead 

a claim of fraudulent misrepresentation, but a claim for piercing the corporate veil does not 

require the plaintiff to plead a separate tort against the individual defendant. The pertinent 

inquiry is whether the individual defendant abused the corporate status to cause harm to the 

plaintiff. Foodland Distrib, 220 Mich App at 456. Accordingly, evidence that defendant used 

deception to induce plaintiff to invest in Invescor may satisfy the third element. 

 Plaintiff contends that it was unjustly injured because defendant used deceptive 

accounting practices to conceal Invescor’s true financial state and falsely present incomplete and 

potential transactions as assets with actual value. Defendant denies using deceptive accounting 

practices and contends that Invescor’s procedures for listing potential life settlements as assets 

according to the stage of the transaction did not violate GAAP, and that the nature of these assets 

were disclosed to plaintiff in the documents that defendant produced for plaintiff’s due diligence 

consultants. The trial court did not address the parties’ arguments about recording incomplete 

transactions as assets, but found generally that plaintiff would not have entered into the loan 

agreement with Invescor if it had known the true condition of Invescor’s finances. 

 Plaintiff argues that the inclusion of unsold policies as inventory or accounts receivable 

inflated the value of Invescor as determined from the 2006 and 2007 balance sheets that plaintiff 

received before entering into the loan transactions with Invescor. Plaintiff contends that it did 

not have sufficient materials to understand the nature of these “phantom assets” until the prior 

lawsuit, when plaintiff was able to review Invescor’s finances according to cash-based rather 

than accrual-based accounting. Defendant justifies his accounting method as suitable for the life 

settlement industry. He emphasizes that before the policies were sold, they were an asset adding 

value to Invescor because Invescor obtained the exclusive right to sell those policies. 

The 2007 balance sheet listed three items under the “Current Assets” heading: (1) cash in 

banks ($55,606), (2) accounts receivable – life insurance ($59,160), and (3) accounts receivable 

– life settlement ($6,476,361). The 2007 balance sheet is accompanied by a document entitled, 

“Note 1: Nature of Operations and Accounting Methods,” which stated: 

 Life Settlement: The Company records accounts receivable on a 5 stage 

basis, stage 1 through 3 being less collectable than stage 4 and 5. Attached are the 

calculations for the various stages which includes [sic] an allowance for doubtful 

accounts. 

The 2007 balance sheet also has an attachment entitled “Accounts receivable 

detail,” which listed these amounts: 

 Application Stage Rec (1,2,3) $2,632,000.00 

 Application Stage Reserve $ (840,000.00) 
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 Offer Stage Rec (4) $2,827,616.72 

 Offer Stage Reserve $ (331,102.66) 

 Closing Stage (5) $ 1,189,994.00 

 Closing Stage Reserve $ (3,147.39) 

Plaintiff does not indicate whether it received the attachments to the 2007 balance sheet, or 

whether this information could have alerted plaintiff to the problem with recording incomplete 

settlement transactions as assets. 

 Plaintiff asserts that defendant admitted in his testimony that no money changed hands 

during the early stages of the sale of the policies as life settlements. Defendant testified as 

follows: 

Q. So for each application in stage 1, there is an actual sale of the life 

settlement policy? 

A. No. A customer comes to us, asking us to sell their policy. Stage 1 is 

when we receive the file and we evaluate that it’s viable for sale. 

Q. So what is the transaction? 

A. The customer has submitted to us an application for sale of his or her 

life insurance policy. 

Q. And so is the sale made? 

A. The sale would not be made until stage 5. . . . 

No monies have transferred hands until stage 5. 

Defendant stated that at stage one, “[t]here is no sale in the sense that the customer has given up 

ownership yet. They have put the product on the market for sale.” Invescor did not “take 

ownership at any part of the process,” but Invescor had “exclusivity on the sale.” Defendant 

explained that once the file was submitted to Invescor, the client “has exclusively assigned it to 

us to send it out to bid for the highest price.” Defendant explained that at stage one, the policy 

was “in the process of seeing if somebody wants to buy it, and we have already determined that 

the market would accept this policy.” According to defendant, at this point there was not yet a 

buyer, “and that’s one of the reasons we create the reserve.” Invescor recorded the estimated 

commission. Defendant stated that estimating the value in this manner was acceptable under 

GAAP and in accrual-basis accounting. 

 Plaintiff maintains that defendant’s “awaiting market” category on the financial 

statements was an especially egregious false representation. According to plaintiff, this category 

was entirely fictional, even when the reserve is taken into consideration. Defendant admitted in 
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his deposition that Invescor did not have ownership of policies that were placed in the “awaiting 

market” category. He stated: 

 Awaiting market was a firm written bid by a provider stating that they 

would buy the capital—they were purchasing the policies as soon as their capital 

sources were funded. This was a change in the industry and that change was that 

their credit lines were disappearing and they were looking for new funding 

sources. They wanted to buy those policies, they gave us firm commitments to 

them. We had to put them in a different category because we did not have—they 

weren’t going to buy them at stage 5 in 30 days. They asked us to await and hold 

that file for them.” 

The buyers of these policies represented that “they had funding coming through,” but this did not 

take place. Although plaintiff contends that defendant and Invescor’s accountant, Charles 

Kessler, knew that these accounting methodologies were invalid, the evidence that plaintiff cites 

in support of this contention does not reflect any recognition that the methods were deceptive or 

invalid. Kessler testified that this method was “pretty unique,” and that defendant helped 

develop the method, but Kessler indicated that this method reflected the realities of the life 

settlement industry. 

 Defendant asserts that plaintiff’s due diligence advisor, Adrian Anderson, obtained all the 

relevant documents pertaining to the inclusion of incomplete sales as assets. Anderson admitted 

in his deposition that he received the balance sheet with the attachment on the five stages: 

Q. Did you know at the time whether or not it was based on accrual or 

based on cash? 

A. The financial statements that were presented gave the appearance that 

the profits were cash. 

Q. No, no. Don’t tell me if they gave an appearance. They also gave an 

appearance that one through five of the staging of the settlement insurance 

policies -- 

A. We just-- 

Q. Let me finish my question. You know that various stages of the 

settlement policy process were collectible versus less collectible, did you not? 

A. Yes. 

Q. And all of those terms in terms of the values of the policies in each 

stage one through five were contained on the balance sheet that you got, on the 

profit and loss? 

A. Yeah, we looked at the bottom line on the P and L as prepared by the 

CPA firm. 
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Q. Okay. Do you have any reason to believe that the information 

provided was fraudulent? 

A. No. 

Q. Do you have any reason to believe that the information provided was 

not true? 

A. No. 

Q. Do you have any reason to believe that anybody on behalf of Invescor 

made any misrepresentations whatsoever? 

A. No. 

 Defendant contends that the documents provided to plaintiff’s due diligence consultants 

included information disclosing the method of recording life insurance policies that were 

intended for sale to providers, and which defendant had the exclusive right to sell as life 

settlements, but were not yet sold. Defendant cites Nieves v Bell Indus, Inc, 204 Mich App 459, 

464; 517 NW2d 235 (1994) for the principle that “[t]here can be no fraud where a person has the 

means to determine that a representation is not true.” Plaintiff argues that Nieves is factually 

distinguishable. In Nieves, the plaintiff was orally informed during a job interview that the 

position was “long-term,” and that the employer would not terminate employment “arbitrarily.” 

The plaintiff was offered the position, and subsequently signed a written application that stated 

that employment was terminable at the will of the employer. The plaintiff was given an oral 

assurance that this provision did not apply to him. Id. at 460-461. The plaintiff accepted the 

employment, and was subsequently terminated. The plaintiff brought an action against the 

defendant employer for wrongful discharge and misrepresentation. Id. at 462. This Court held 

that the trial court should have dismissed the plaintiff’s misrepresentation claim, stating, “A 

misrepresentation claim requires reasonable reliance on a false representation. . . . There can be 

no fraud where a person has the means to determine that a representation is not true.” Id. at 464. 

 Plaintiff contends that Nieves is distinguishable because the plaintiff in that case should 

have known from the written agreements that the prior oral assurance of just-cause employment 

was false. Plaintiff contends that there was only “a mere possibility” that it could have 

discovered the falsity of the financial statements through its due diligence advisor. However, the 

attachments to the 2007 balance sheet arguably gave plaintiff’s advisors information concerning 

the recording of accounts receivable. The attached Note states, “The Company records accounts 

receivable on a 5 stage basis, stage 1 through 3 being less collectable Attached are the 

calculations for the various stages which includes [sic] an allowance for doubtful accounts.” 

This attachment supports defendant’s argument that there was no misrepresentation because 

plaintiff was provided with the relevant information. Accordingly, the evidence establishes a 

question of fact regarding whether plaintiff sustained an unjust injury or loss. Rymal, 262 Mich 

App at 293-294. If defendant provided the information, but plaintiff’s advisors overlooked it or 

misunderstood it, then plaintiff’s injury could be attributable to its advisors’ actions. Plaintiff 

argues that defendant’s fraud cannot be excused merely because plaintiff might have discovered 
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it, but this is not an accurate characterization if defendant actually provided the documents 

containing the necessary information. 

 Plaintiff argues that defendant failed to offer evidence that Invescor’s procedure for 

recording unsold life insurance policies as accounts receivable or inventory is an accepted 

practice under GAAP. However, plaintiff failed to offer evidence that it is not. Plaintiff’s 

evidence that defendant and Kessler exchanged e-mails about this practice, and that Kessler 

testified in his deposition that he did not develop the practice, does not negate the existence of a 

question of fact over the legitimacy of the practice. Kessler testified that he did not 

independently verify that this accounting practice is appropriate in the life settlement industry, 

and he referred to the method as “pretty unique,” but he also stated that the method “made sense” 

to him. Plaintiff has not offered any other evidence that defendant’s practice was inherently 

deceptive or unethical. 

 Plaintiff stated that defendant falsely represented that the funds loaned by plaintiff would 

be allocated toward expanding Invescor’s business. Plaintiff cited e-mails exchanged between 

defendant and Adrian Anderson regarding plaintiff’s demand for a personal guarantee. Plaintiff 

also cites defendant’s Executive Summary stating that funds invested by plaintiff would be used 

toward expanding Invescor’s business. But plaintiff does not offer any evidence that defendant 

made a commitment to using the funds only for expansion of Invescor’s business. 

 In sum, the evidence established sufficient questions of fact regarding defendant’s alleged 

use of Invescor as a mere instrumentality, and regarding whether plaintiff sustained an unjust 

loss attributable to defendant’s alleged abuse of the corporate form. Accordingly, the trial court 

erred in granting plaintiff’s motion for summary disposition. 

D. THE GLENN FACTORS 

 Defendant argues that this Court’s decision in Glenn requires that the trial court conduct a 

fact-specific analysis, taking into account each of the factors stated in Glenn, 305 Mich App at 

716. These factors are: “(1) whether the corporation is undercapitalized, (2) whether separate 

books are kept, (3) whether there are separate finances for the corporation, (4) whether the 

corporation is used for fraud or illegality, (5) whether corporate formalities have been followed, 

and (6) whether the corporation is a sham.” Id. However, the Court in Glenn did not mandate 

consideration of each of these factors, but instead commented “[t]here is no single rule 

delineating when the corporate entity may be disregarded,” because the “entire spectrum of 

relevant fact forms the background for such an inquiry . . . .” Id. This Court stated that these 

factors are “used by courts to determine the propriety of piercing the corporate veil,” and that 

these factors are “include[d]” in the analysis. Id. Therefore, explicit consideration of each of 

these factors is not required. 

III. JURY TRIAL 

 Defendant argues that because he filed a jury demand with his answer to plaintiff’s 

complaint, he is entitled to a jury trial on remand. We disagree. 

 A party’s right to a jury trial depends on whether the constitution or a statute confers such 

a right. Madugula v Taub, 496 Mich 685, 696; 853 NW2d 75 (2014). Questions of 
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constitutional law are reviewed de novo. Champion v Secretary of State, 281 Mich App 307, 

309; 761 NW2d 747 (2008). Issues concerning the interpretation and application of court rules 

are reviewed de novo. Haliw v City of Sterling Hts, 471 Mich 700, 704-705; 691 NW2d 753 

(2005).

 Preliminarily, we reject defendant’s argument that he was entitled to an immediate trial 

under MCR 2.116(I)(3). That court rule provides: 

 A court may, under proper circumstances, order immediate trial to resolve 

any disputed issue of fact, and judgment may be entered forthwith if the proofs 

show that a party is entitled to judgment on the facts as determined by the court. 

An immediate trial may be ordered if the grounds asserted are based on subrules 

(C)(1) through (C)(6), or if the motion is based on subrule (C)(7) and a jury trial 

as of right has not been demanded on or before the date set for hearing. If the 

motion is based on subrule (C)(7) and a jury trial has been demanded, the court 

may order immediate trial, but must afford the parties a jury trial as to issues 

raised by the motion as to which there is a right to trial by jury. [Emphasis 

added.] 

Plaintiff’s motion for summary disposition was brought under MCR 2.116(C)(10), and therefore, 

was not within the scope of the immediate trial provision under subrule (I)(3). 

 Regarding defendant’s claim that he is entitled to a jury trial, Const 1963, art 1, § 14 

provides that “[t]he right of trial by jury shall remain, but shall be waived in all civil cases unless 

demanded by one of the parties in the manner prescribed by law.” “To determine whether a 

constitutional right to a jury trial attaches to a claim,” this Court considers whether the nature of 

the claim would have been considered legal in nature at the time our Constitution was adopted. 

Madugula, 496 Mich at 705-706. If the nature of the controversy is equitable, “then it must be 

heard before a court of equity.” Id. This determination depends upon both the nature of the 

underlying claim and “the relief that the claimant seeks.” Id. at 706. Piercing of the corporate 

veil is an equitable remedy. Foodland Distrib, 220 Mich App at 456. 

 Defendant acknowledges that a claim to pierce the corporate veil sounds in equity, and 

therefore, he is not entitled to a jury trial on that claim. He argues, however, that he is entitled to 

a jury trial with regard to plaintiff’s claim for breach of contract. “[I]n cases involving both 

equitable and legal issues, juries may decide factual issues relating to a claim for money 

damages, while judges retain the authority to determine the facts as they relate to equitable 

remedies such as specific performance or injunction.” ECCO Ltd v Balimoy Mfg Co, 179 Mich 

App 748, 751; 446 NW2d 546 (1989). Plaintiff argues that it has not alleged a breach of contract 

claim separate from the veil-piercing claim, because the only breach is Invescor’s breach of its 

loan agreements with plaintiff, and plaintiff already obtained a default judgment against Invescor 

for that breach of contract. Consequently, there is no separate jury-triable claim. We agree with 

plaintiff. 

 In Gallagher v Persha, ___ Mich App ___; ___ NW2d ___ (2016) (Docket Nos. 327840 

and 325471), the plaintiff sued a corporate defendant, Kaper, and an individual defendant, 

Kathleen Persha, for breach of fiduciary duty and fraud with regard to a failed mortgage 
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transaction. Id. at ___; slip op at 2. The plaintiff obtained a judgment against Kaper pursuant to 

case evaluation, but Persha rejected the case evaluation. The parties stipulated to dismiss the 

plaintiff’s remaining claims against Persha without prejudice. Id. at ___; slip op at 2. The 

plaintiff then brought a three-count complaint against Persha, raising claims of fraud, breach of 

fiduciary duty, and piercing the corporate veil. The trial court dismissed the first two claims, 

respectively on grounds of prior dismissal and the plaintiff’s failure to plead a valid claim for 

relief against the defendant. The trial court then dismissed the veil-piercing claim on the ground 

that it was no longer supported by an underlying cause of action. Id. at ___; slip op at 2-3. On 

appeal, this Court held that where a plaintiff has already obtained a judgment against a corporate 

defendant on a cause of action, and subsequently seeks to enforce that judgment against an 

individual defendant on a theory of piercing the corporate veil, the cause of action is merged into 

the judgment that the plaintiff seeks to enforce, and there is no need to obtain a second judgment 

against the individual defendant on the underlying claim. Id. at ___; slip op at 8. This Court 

stated: 

A corporate veil is pierced and liability imposed upon an individual shareholder 

or officer not because the shareholder or officer was necessarily liable under the 

cause of action resulting in the judgment against the corporation. . . . Instead, 

liability is imposed because the fact finder has concluded that the individual so 

misused the corporation that it was unable to pay on the outstanding judgment and 

an injustice would occur if it the corporate form was not ignored. [Id. at ___; slip 

op at 9.] 

This Court further concluded that, “when a judgment already exists against a corporate entity, an 

additional cause of action is not needed to impose liability against a shareholder or officer if a 

court finds the necessary facts to pierce the corporate veil.” Id. at ___; slip op at 10. These 

principles apply to this case, given that plaintiff has already obtained a default judgment against 

Invescor, and now seeks to impose liability on defendant through a claim of piercing the 

corporate veil. Accordingly, plaintiff’s claim for breach of contract was merged into the 

judgment that plaintiff now attempts to enforce against defendant. 

 Reversed and remanded for further proceedings. We do not retain jurisdiction. 

/s/ Cynthia Diane Stephens 

/s/ Deborah A. Servitto 

/s/ Douglas B. Shapiro