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### STATE OF MICHIGAN

COURT OF APPEALS

PETER BORMUTH,

Plaintiff-Appellant, UNPUBLISHED October 22, 2015

v No. 321865 Jackson Circuit Court GRAND RIVER ENVIRONMENTAL ACTION TEAM, and KENNY PRICE, LC No. 14-000279-CZ

Defendants-Appellees.

Before: B OONSTRA , P.J., and S AAD and H OEKSTRA , JJ.

P ER C URIAM

. Plaintiff appeals the trial court’s grant of summary dispositi on to defendants pursuant to MCR 2.116(C)(8). For the reasons stated below, we affirm.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff represents himself as an “avid canoeist” who seeks t o determine the extent of dioxin/furan and mercury contamination in the Grand River, down stream from the City of Jackson Wastewater Treatment Plant in Jackson County, Michigan. In furtherance of this goal, on September 30, 2013, plaintiff se nt a letter to defendant Gra nd River Environmental Action Team (“GREAT”), a nonprofit corporation that has a stated purpo se of “preserv[ing], protect[ing], and promot[ing] t he Grand River in Jackson County .” Plaintiff requested permission to enter a parcel of land owned by GREAT—which abuts the Grand River and which was previously conveyed to GREAT by the State of Michigan in Ma rch 2013—for the purpose of conducting tests on river sediment. Plaintiff sought to ent er GREAT’s property “with a technician from Ann Arbor Techni cal Services for the purpose of taking three [12- inch] sediment core samples” that would allow plaintiff to assess “the health of the Grand River.” Plaintiff was allowed to present his request to GREAT’s board of directors at its monthly meeting on October 8, 2013. At that meeting, defendant Kenny Price, GREAT’s presi dent, created a subcommittee to consider plaintiff’s request. Subsequently, at a meeting on November 13, 2013, Price reported that the subcommittee had recommended that plaintiff’s request be denied. GREAT’s board of directors then voted unanimous ly to deny plaintiff’s request.

Plaintiff responded by initiating this suit. In his amended c omplaint, plaintiff alleged four causes of action: breach of fiduciary duty, willful and w anton misconduct, gross negligence, and violatio n of the public trust.-2- Defendants moved for summary disposition as to all of plaintif f’s claims. In pertinent part, as to plaintiff’s claim fo r breach of a fiduciary duty, d efendants argued that plaintiff had failed to state a claim on which relief could be granted becaus e the complaint failed to allege any facts indicating that plaintiff and defendants were in a fiduci ary relationship, such that defendants owed plaintiff any so rt of fiduciary duty. After a hearing on the matter, the trial court granted defendants’ motion and di smissed plaintiff’s complaint in its entirety. As it pertained to the breach of fiduciary duty claim, the trial court agreed that plaintiff’s complaint had failed to allege facts to support the theory that a fiduciary relationshi p existed between plaintiff and defendants. The trial court s ubsequently denie d plaintiff’s mo tion for reconsideration.

II. STANDARDS OF REVIEW

We review de novo a trial court’s decision on a motion for sum mary disposition. Maiden v Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999). Here, the trial cour t granted summary disposition in favor of defenda nts pursuant to MCR 2.116(C)(8), which provides that summary disposition is proper where “[t] he opposing party has failed to state a claim on which relief can be granted.” “A motion under MCR 2.116(C)(8) tests the legal s ufficiency of the complaint.” Id . at 119. In deciding a motion under MCR 2.116(C)(8), the tria l court is limited to reviewing the pleadings alone. Id . at 119-120, citing MCR 2.116(G)(5). “All well-pleaded factua l allegations are accepted as true and construed in a light most favorable to the nonmovant.” Maiden , 461 Mich at 119. Summary disposition under MCR 2.116(C)(8) i s appropriate “only where the claims alleged are ‘so clearly unenforceable as a mat ter of law that no factual development could possibly justify recovery.’” Id. , quoting Wade v Dep’t of Corrections , 439 Mich 158, 163; 483 NW2d 26 (1992).

Further, whether a fiduciary duty exists is a question of law that we review de novo. Prentis Family Foundation v Barbar a Ann Karmanos Cancer Institute , 266 Mich App 39, 43; 698 NW2d 900 (2005).

III. ANALYSIS

On appeal, plaintiff only challenges the trial court’s ruling with respect to his claim that GREAT and its various board members (only one of which is named in the complaint) breached their fiduciary duties. Accordingly, our review is limited onl y to the trial court’s dismissal of that cause of action. See Prince v MacDonald , 237 Mich App 186, 197; 602 NW2d 834 (1999) (stating that the failu re to brief an issue results in it being abandoned).

Plaintiff argues that the trial court erred because GREAT trea surer Jack Ripstra violated his duty of loyalty. In making this argument, plaintiff admits that Ripstra, as a director of GREAT, owed the duty of loyalty to GREAT, not himself. Plainti ff’s argument is based on the assertion that, in addition to be ing a director of GREAT, Ripst ra also is the Blackman Township engineer. Plaintiff avers that this “conflict of interest” res ulted in Ripstra’s vote to deny plaintiff’s request to allow him to perform his testing because he was protecting Blackman Township from a possible laws uit, not to advance the mission of GREAT.

Assuming arguendo that the above f acts demonstrate that Ripstr a violated his duty of loyalty to GREAT, plaintiff has failed to establish how he has standing to assert the violation.-3- This Court has explained, “The doctrine of standing provides th at a suit to enforce corporate rights or to redress or prevent injury to a corporation, whethe r arising from contract or tort, ordinarily must be brought in th e name of the corporation, and not that of a stockholder, officer, or employee.” Belle Isle Grill Corp v Detroit , 256 Mich App 463, 474; 666 NW2d 271 (2003). Here, although the alleged breach of duty was to GREAT, plainti ff did not bring the suit in the name of the corporation. Furth er, while an individual can brin g a suit on his own behalf if he “can show a violation of a duty owed directly to [him] that is independent of the corporation,” plaintiff has not shown how this exception would apply here. Id. (citation omitted). Plaintiff, who is not a stockholder or memb er of GREAT, has not alleged an y facts to establish that Ripstra owed any duty directly to him.

Further, plaintiff’s claim that his suit should continue becau se he is a “beneficiary” of GREAT is not persuasive. While a beneficiary to a trust has st anding to sue on matters related to the trust, see In re Beatrice Rottenberg Living Trust , 300 Mich App 339, 355; 833 NW2d 384 (2013), GREAT is a corporation, not a trust, and consequently h as no beneficiaries. Thus, plaintiff’s reliance on this legal principle is misplaced.

Plaintiff also argues that GRE AT directors Ripstra, Kenny Pric e, and Jim Seltz violated the duty of good faith and obedience. But, as we have already discussed, directors, such as Ripstra, Price, and Seltz, owe a duty to GREAT, not plaintiff. Consequently, for the reasons already provided, plaintiff lack s standing to pursue these clai ms. 1

In sum, plaintiff’s breach of fiduciary duty claim is “so clea rly unenforceable as a matter of law that no factual development could possibly justify recov ery,” Maiden , 461 Mich at 109, and summary disposition under MCR 2.116(C)(8) was proper. And, because we agree with the trial court’s conclusion that further amendment to the complain t would be futile, we affirm this ruling.

Affirmed. Defendants, as the pr evailing parties, may tax cost s pursuant to MCR 7.219.

/s/ Mark T. Boonstra /s/ Henry William Saad /s/ Joel P. Hoekstra

1 Moreover, plaintiff’s argument is based on his position that t hese directors made a patently bad decision, especially when they were provided with information t hat pollutant discharges into the river had been taking place for the last 30 years and there had been no testing since 1992. We note that even if plaintiff had standing, plaintiff failed to a llege sufficient facts to overcome the business judgment rule. See In re Estate of Butterfield , 418 Mich 241, 255; 341 NW2d 453 (1983).