If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

YETTIE SCHULTHESS COSTNER,

Plaintiff-Appellant,

UNPUBLISHED

April 30, 2020

v No. 345464

Wayne Circuit Court

DONALD C. BURNIAC and,

LINDA ANN BURNIAC,

LC No. 16-011072-CZ

Defendants-Appellees.

Before: M. J. KELLY, P.J., and K. F. KELLY and SERVITTO, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court’s September 2018 order granting defendants’ 

motion to quash/relief from judgment. We reverse and remand for entry of an order denying 

defendants’ motion for relief from judgment.

I. FACTS AND PROCEDURAL BACKGROUND

Plaintiff initiated a lawsuit in 2009 against defendants in Georgia when they allegedly 

breached an agreement between the parties for the purchase of plaintiff’s certified public 

accounting business in Georgia. That matter concluded with the entry of a final judgment against 

defendants in 2013. That judgment was domesticated in Michigan in 2016. In 2018, defendants 

filed an action in Louisiana against plaintiff and several others. They alleged claims of breach of 

contract, defamation, fraud, conversion, and nullity of the October 2013 Georgia judgment. That 

matter led to a decision from the Courts of Appeal of Louisiana’s First Circuit, Burniac v Costner, 

277 So3d 1204; 2018-1709 (La App 1 Cir 5/31/19). The general facts were set forth in that case:

In 2008, Yettie S. Costner executed an asset purchase agreement wherein 

she sold a tax preparation and accounting business that she operated in Georgia to 

Georgia Management Enterprises, Inc. (“GME”). The business sold included the 

existing clients, goodwill, equipment, software license rights, and Mrs. Costner’s 

agreement not to compete for a period of five years. The agreement provided for 

the purchase of the business by an initial payment of $1,000, plus 119 additional 

payments of $1,000 each, to be paid in monthly installments.1 Shortly after selling 
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the business, Mrs. Costner and her then-husband, Henry Costner, moved to 

Louisiana.

In July 2009, Mrs. Costner filed suit in Georgia against GME, Donald 

Burniac (as the incorporator of GME), Linda Burniac (as the president of GME), 

and Kurt Hines (as an employee of GME), for breach of contract, tort damages, and 

injunctive relief. In the Georgia complaint, Mrs. Costner alleged that in addition to 

the aforementioned asset purchase agreement, there was an agreement wherein 

GME arranged to lease the real property in which Mrs. Costner formerly operated 

her business. She further alleged that she and Mr. Burniac entered into a verbal 

contract whereby Mrs. Costner agreed to perform tax and accounting work for 

GME as an independent contractor. Despite these agreements, Mrs. Costner 

claimed that she stopped receiving lease payments and payments for the purchase 

of the business in March 2009. She also alleged that GME, the Burniacs, and Mr. 

Hines were liable for misrepresentation and fraud for failing to perform services for 

which clients had paid and for failing to compensate her for work she performed. 

Hence, in addition to damages for breach of contract and tort, Mrs. Costner sought 

mandatory injunctive relief to regain access to the real property leased to GME and 

to the business assets sold, including her former clients’ files, computer software, 

data, and equipment. She also requested permission to perform tax and accounting 

services for her former client as part of the injunctive relief requested. [Burniac, 

277 So3d at 1206-1207.]

1 Per the agreement, Mrs. Costner was also entitled to collect an annual contingent 

payment of ten percent of GME’s gross sales, but only for gross sales in the range 

of $120,000 to $150,000 per fiscal year for a period of ten years.

Plaintiff’s Georgia complaint alleged that defendants resided, conducted business, and 

committed tortious acts and omissions in Darien, Georgia, at the time her claims arose. Plaintiff 

also alleged that the Georgia court had personal jurisdiction over GME, Hines, and defendants. 

Through attorney Mark Johnson and Abney Whitehead, defendants, GME, and Hines then filed 

an answer and affirmative defenses, and GME filed its own counterclaims against plaintiff. 

Defendants admitted that before April 2009 they resided at the alleged Georgia residence, but 

denied committing any acts or omissions as alleged. Defendants neither admitted nor denied that 

the Georgia court had personal jurisdiction over them or Hines on the basis that plaintiff’s 

complaint sought a legal conclusion defendants were unable to make. Defendants also asserted 

that plaintiff’s allegations regarding personal jurisdiction were “denied by operation of law.”

Two weeks after filing defendants’ answer and affirmative defenses, attorney Abney 

Whitehead, filed an acknowledgment of service indicating that GME, the Burniacs, and Hines 

“acknowledge[d] personal service in said cause, receipt of copy of complaint and summons, and 

waives further service.” Over the coming months attorney Mark Johnson filed responses to 

plaintiff’s discovery requests including individual responses to interrogatories on behalf of Linda 

Burniac and Donald Burniac (although the content of those responses is unknown), and, along 

with plaintiff’s attorney, a joint motion for the extension of discovery.
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Over a year later, in May 2011, Whitehead withdrew from representing defendants, GME, 

and Hines in the Georgia litigation, “with the express permission and consent of [GME], Donald 

C. Burniac, Linda A. Burniac, and Kurt Hones . . . .” The following February, defendants and 

plaintiff filed a joint stipulation to waive trial by jury. In January 2013, Johnson filed a motion to 

withdraw with the Georgia court. Johnson asserted that he had repeatedly attempted to reach 

GME, the Burniacs, and Hines, by telephone call, e-mail, and a certified letter without success. 

The Georgia court entered an order allowing Johnson to withdraw as defendants’ attorney in midFebruary 2013.

Defendants did not appear for a March 2103 pretrial conference. The trial court 

subsequently granted a motion by plaintiff to dismiss defendants’ answer and counterclaim without 

prejudice, and entered an order requiring defendants, GME, and Hines to “appear and show cause 

before me on the 31[st] day of October, 2013, at 9:00 o’clock, A.M., as to why the relief and 

prayers of the Plaintiff should not be granted as stated in her complaint.” When defendants failed 

to appear, the Georgia court entered the following final judgment against defendants, GME, and 

Hines:

This action came on for a hearing before the court on October 31, 2013, the 

Honor Robert L. Russell, III, presiding, and the issues having been duly heard and 

tried, and a decision having been duly rendered;

Plaintiff having shown personal and subject matter jurisdiction is proper in 

this court; that Plaintiff’s right of action existed on the commencement of this suit; 

all necessary parties being made a party hereto; all Defendants having been served 

or acknowledged service; Defendants having made an appearance in this court; 

Defendants having failed to participate in discovery and having failed to appear in 

person or by counsel upon the call of this case, Defendants’ answers and 

counterclaim having previously been stricken; and Plaintiff having proved her 

causes of actions and damages;

IT IS ORDERED AND ADJUDGED that, with respect to Counts II, III, V, 

and IX of Plaintiff’s complaint, that the Plaintiff, Yettie Schulthess Costner, recover 

from the Defendants Georgia Management Enterprises, Inc., Donald C. Burniac, 

Linda A. Burniac, and Kurt Hines, jointly and severally, the sum of $222,500.00 

with interest thereon as provided by O.C.G.A § 7-4-12.

IT IS FURTHER ORDERED AND ADJUDGED that, with respect to 

Counts VI (fraud) and VII (punitive damages) of Plaintiff’s complaint, that the 

Plaintiff, Yettie Schulthess Costner, recover from the Defendants, Georgia 

Management Enterprises, Inc., Donald C. Burniac, Linda A. Burniac, and Kurt 

Hines, the sum of $360,000.00, individually from each such named defendant, with 

interest thereon as provided by O.C.G.A. § 7-4-12.

Pursuant to O.C.G.A. § 7-4-12, such judgment shall bear annual interest 

upon the principal amount of such judgment at a rate equal to the prime rate as 

published by the Board of Governors of the Federal Reserve System, as published 

in statistical release H.15 or any publication that may supersede it, on the day this 
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judgment is entered plus 3 percent. Such interest shall apply to the state judgment 

amount and such interest shall be collectable as part of, and in addition to, the 

amount of the judgment.

In the May 2013 term of this Court, so ordered and adjudged, this 31st day 

of October, 2013.

At some point thereafter, plaintiff discovered defendants resided in Michigan. On August 

30, 2016, plaintiff filed an affidavit and notice of entry of foreign judgment in the Wayne Circuit 

Court to have the Georgia judgment enforced in Michigan. On September 1, 2016, the court clerk 

signed the notice of entry and accepted the foreign judgment for filing. The affidavit and notice 

of entry were served by plaintiff on defendants at a post office box in Plymouth, Michigan. 

Enforcement of the domesticated judgment was stayed for 21 days. Three days before the Georgia 

judgment became enforceable in Michigan, “the Burniacs executed a warranty deed on September 

19, 2016, to transfer a piece of real property that they owned in Michigan [10075 Red Maple Drive, 

Plymouth, MI,] to a Louisiana irrevocable trust [Laurel Oaks Co].” Burniac, 277 So3d at 1207. 

On September 26, 2017, a writ of garnishment was issued for Donald Burniac’s tax return, 

resulting in the subsequent garnishment of $52,975 on October 22, 2017. On September 14, 2017, 

after discovering the transfer while investigating defendants’ finances, plaintiff filed an action in 

Michigan “to void the warranty deed and recover the real property that the Burniacs transferred to 

the Louisiana trust.” Burniac, 277 So3d at 1207.

Following a November 2017 order from another Wayne Circuit Court judge permitting 

alternate service in plaintiff’s case to void the warranty deed, defendants and GME filed suit 

against plaintiff (and others) in Louisiana in January 2018. Burniac, 277 So3d at 1207-1208. Six 

months after filing suit in Louisiana, defendants filed the instant motion to quash or for relief from 

judgment. 

In their motion, defendants argued that the Georgia judgment was void for lack of service 

and personal jurisdiction and, as a result, was unenforceable in Michigan. Defendants also 

contended that although the acknowledgment of service at issue was signed by Whitehead, 

defendants’ affidavits established that they never hired an attorney in the underlying case and did 

not authorize anyone to accept service on their behalf.

Plaintiff responded that defendants’ motion should be denied under MCR 2.603 and MCR 

2.612. Relevant to this appeal, plaintiff argued that relief from judgment under MCR 2.612 was 

inappropriate because the motion was untimely, having not been filed until nearly two years after 

domestication of the Georgia judgment in Michigan, and was not justified under the catchall 

provision of MCR 2.612(C)(1)(f). Plaintiff also argued that defendants’ motion was an improper 

collateral attack, and that defendants had waived the defense of lack of personal jurisdiction. After 

argument, the trial court granted defendants’ motion and denied plaintiff’s request for sanctions, 

explaining that it relied on defendants’ brief, MCR 2.612(C)(1)(d), and Blackburne & Brown 

Mortg Co v Ziomek, 264 Mich App 615; 692 NW2d 388 (2004) in arriving at its decision.
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II. MCR 2.612’S REASONABLE TIME REQUIREMENT

Plaintiff first argues on appeal that the trial court erred by granting defendants’ motion to 

quash or for relief from judgment because defendants did not file the motion within a reasonable 

time. We agree.

This Court reviews for an abuse of discretion a trial court’s ruling on a motion for relief 

from judgment. Dep’t of Environmental Quality v Waterous Co, 279 Mich App 346, 364; 760 

NW2d 856 (2008). “An abuse of discretion occurs when the trial court’s decision is outside the 

range of reasonable and principled outcomes.” Kalaj v Khan, 295 Mich App 420, 425; 820 NW2d 

223 (2012). Additionally, “ ‘[t]he proper interpretation and application of a court rule is a question 

of law, which we review de novo.’ ” Rose v Rose, 289 Mich App 45, 49; 795 NW2d 611 (2010), 

quoting Henry v Dow Chem Co, 484 Mich 483, 495; 772 NW2d 301 (2009) (alteration in original).

MCR 2.612(C)(1)(d) provides that a trial court can relieve a party from a “final judgment, 

order, or proceeding” if “[t]he judgment is void.” MCR 2.612(C)(2) states that the motion for 

relief from judgment under that subrule “must be made within a reasonable time, and, for the 

grounds stated in subrules (C)(1)(a), (b), and (c), within one year after judgment, order, or 

proceeding was entered or taken.” 

When there is a want of jurisdiction over the parties or the subject matter, no matter what 

formalities may have been taken by the trial court, the action is void because of its want of 

jurisdiction. Consequently, its proceedings may be questioned collaterally as well as on direct 

appeal. Altman v Nelson, 197 Mich App 467, 472–73; 495 NW2d 826 (1992); see also Nash v 

Salter, 280 Mich App 104, 120; 760 NW2d 612 (2008), quoting Blackburne, 264 Mich App at 

620-621 (“ ‘[C]ollateral attack may be made in the courts of this state by showing that the judgment 

sought to be enforced was void for want of jurisdiction in the court which issued it.’ ”) (Alteration 

in original). And, “a motion that seeks to set aside a judgment because it is void is not subject to 

the one-year requirement. Instead, such a motion may be heard by the trial court if it is brought 

within a reasonable time.” Inverness Mobile Home Cmty, Ltd v Bedford Tp, 263 Mich App 241, 

247; 687 NW2d 869 (2004). Whether a motion was filed within a reasonable time depends on the 

circumstances of the case. See, e.g. Laffin v Laffin, 280 Mich App 513, 522 n 1; 760 NW2d 738 

(2008).

In this matter, the Georgia judgment was entered in October 2013. Plaintiff asserts that in 

2015, she discovered that defendants were residing in Michigan. She therefore filed an affidavit 

and notice of entry of foreign judgment on August 30, 2016, which also contained a proof of 

service of the document upon defendants. The judgment was thereafter domesticated in Michigan 

on September 1, 2016. Plaintiff executed several writs of garnishment on various purported 

accounts and assets of defendants throughout 2016. Of note, one of the writs was sent to Comerica 

Bank, of whose Detroit legal department filed a garnishee disclosure on December 8, 2016. In the 

disclosure, Comerica indicated that Donald Burniac held an account with it, but that the account 

was not subject to garnishment because his social security benefits were deposited into that 

account. Also on the disclosure, Comerica certified that it had mailed or personally served a copy 

of the garnishment to Donald Burniac on December 2, 2016 and the disclosure to him on December 

8, 2016. Citizens Bank was also served with a writ of garnishment and while it stated in its 
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disclosure that defendants’ account had been closed, it also certified that it sent a copy of the 

disclosure to defendants on January 17, 2017. 

In September 2017, plaintiff initiated an action against defendants in Wayne County, 

Michigan, circuit court asserting that defendants had fraudulently transferred title to Michigan real 

property from their names to a trust in order to avoid the October 2013 Georgia judgment (and 

domestication of the same in Michigan). The Georgia judgment was attached to the complaint.

Plaintiff successfully garnished defendant Donald Burniac’s Michigan income taxes of 

over $52,000.00 in October 2017. Defendants filed a lawsuit against plaintiff in January, 2018. 

In their complaint, they reference the Georgia matter and assert that Georgia did not obtain 

personal jurisdiction over them such that any judgment in that matter in Georgia was void. 

Defendants did not file their motion for relief from judgment until July of 2018. At the 

hearing on defendants’ motion, plaintiff indicated that defendants claimed they did not receive 

mail at a Michigan post office box that the USPS indicated was in their names. In response, 

defendants’ counsel stated, “Your Honor, I think there’s a very big [mis]understanding here on 

Plaintiff’s counsel’s behalf . . . . we’re not challenging the service or the procedure of the 

domestication.” Defendants’ counsel reaffirmed, “At no point did we say that they didn’t receive 

service of domestication, I don’t know where that’s coming from.”

Based upon the above, defendants were aware of the Georgia judgment at the very least by 

December of 2016.1 Knowledge on the part of the defendants may be considered when 

determining whether a motion for relief from judgment was made within a reasonable time, as 

required by MCR 2.612(C)(2). In Laffin, 280 Mich App at 522 n 1, for example, this Court noted 

that a motion for relief from judgment brought five years after the judgment was entered but only 

3 months after notice of the underlying issue, was brought within a reasonable time. 

Defendants have failed to explain or offer any reason why they failed to take any action 

with respect to the Georgia judgment until near five years after it was entered and until nearly two 

years after the judgment was domesticated in Michigan. According to their counsel in the instant 

action, there was no question that they were properly served with the September 2016 action to 

domesticate the Georgia judgment here. The trial court, however, did not address the timeliness 

of defendants’ motion. Indeed, the trial court gave no analysis in rendering its decision on 

defendants’ motion, stating only that it was granting defendants’ motion on the basis of the reasons 

articulated in defendants’ motion, MCR 2.612(C)(1)(d), and Blackburne. 

 

1 This Court notes that GME, a company owned and operated by defendants, was also part of the 

Georgia lawsuit. At no time did GME or defendants assert that the Georgia court failed to obtain 

jurisdiction over GME. Additionally, counsel of record in the Georgia lawsuit was the same for 

defendants and GME and there has been no claim that counsel did not have the authority to act on 

behalf of GME. Presumably, defendants would have been the persons to obtain the services of an 

attorney on behalf of GME. Thus, it is difficult, if not impossible, to believe that defendants were 

unaware of the Georgia judgment until the matter was pursued in Michigan even if, as they assert, 

they did not give GME’s counsel permission to represent them in the Georgia matter. 
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Even taking into account that defendants appear to have moved to different states several 

times over the past few years, their defense counsel’s acknowledgement that defendants were 

served in the domestication matter, coupled with the years’ long length of time between entry of 

the Georgia judgment and defendants’ filing of their motion, leads to the inescapable conclusion 

that defendants have failed to establish that their motion for relief from judgment was brought 

within a reasonable time. As a result, the trial court’s grant of defendant’s’ motion did not fall 

within the realm of reasonable and principled outcomes and thus constituted an abuse of discretion. 

Reversed and remanded for entry of an order denying defendants’ motion for relief from 

judgment. We do not retain jurisdiction. 

/s/ Michael J. Kelly 

/s/ Kirsten Frank Kelly 

/s/ Deborah A. Servitto