Mazur v. Blendea

253 N.W.2d 801, 74 Mich. App. 467, 1977 Mich. App. LEXIS 745

• Court: Michigan Court of Appeals
• Decided: March 29, 1977
• Docket: Docket 26712-26714
• Status: Published

Opinions

M. J. Kelly, J.

The present action is a shareholder’s derivative suit brought by plaintiff, Marvin Mazur, against the defendants, Richard Blendea and various corporations. At trial it was agreed by court and counsel to try the issue of ownership in the defendant corporations separate from the claims of corporate abuse. The trial court concluded that plaintiff was not a shareholder and dismissed all of the consolidated lawsuits on the ground that plaintiff had failed to state a cause of action. Plaintiff’s motion for reconsideration of the judgment or in the alternative, a new trial, was denied and plaintiff’s appeal by right followed.

Plaintiff, on appeal, raises only one issue of substance, that being whether the trial court’s finding that plaintiff was not a shareholder is against the great weight of the evidence.

A shareholder’s derivative action, being equitable in nature, is reviewed de novo in this Court. See Dozier v Automobile Club of Michigan, 69 Mich App 114; 244 NW2d 376 (1976). However, the de novo review of equity cases must be reconciled with the mandate of GCR 1963, 517.1 which states that factual determinations made by a trial court sitting without a jury will not be set aside unless clearly erroneous. In Ford v Howard, 59 Mich App 548, 552; 229 NW2d 841 (1975), this Court explained:

"It is well-settled in Michigan that although chancery cases are reviewed de novo, this Court does not reverse or modify unless convinced that it would reach a different result had it occupied the position of the trial court. * * * [Citations omitted.]

"It is also true that, whether the action is in law or equity, principal regard must be given to the special opportunity of the trial court to judge the credibility of witnesses, and findings of fact will not be set aside unless they are clearly erroneous. [GCR 1963, 517.1.] * * * [Citations omitted.]”

A finding is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been committed after reviewing the entire record, although there is evidence to support the finding. Tuttle v Department of State Highways, 397 Mich 44; 243 NW2d 244 (1976).

The trial court in the present case based its decision on the credibility of defendant Richard Blendea and on the lack of credibility of the plaintiff. The trial court held "that Mr. Mazur [plaintiff] has told too many different versions in the past and is unworthy of belief on the material issues involved in this case, and hence, this Court concludes that Mr. Mazur was never an owner of any of the Car Parts companies, and further, whatever degree of involvement had existed, he relinquished when he obtained and was paid the sums of $5,540.07 and $2,500.00 by the Car Parts companies”. Although the plaintiff presented many witnesses and numerous exhibits, the evidence taken as a whole was often contradictory. After reviewing the record and giving due regard to the opportunity of the trial court to judge the credibility of the witnesses, we are not left with a definite and firm conviction that a mistake has been committed. Although the trial court could have been more specific in setting forth the underlying facts relied on in reaching its ultimate conclusion, neither the trial court’s findings of fact nor its decision is clearly erroneous.

The second issue raised by plaintiff was whether he was denied a fair trial because: (1) the trial was spread over a period of five months; (2) an additional seven months elapsed before the trial court issued its opinion and judgment; and (3) the trial court admitted confusion and poor note-taking ability during the trial. The protracted nature of the proceeding below was undoubtedly nettlesome to the parties. Such interruptions once trial has commenced can hardly be justified on the basis of an unwieldy docket. We do not condone a practice of adjourning or postponing proceedings in the vague hope that accommodation between the parties will be forced. However such does not appear to be the case here. We find no manifest injustice.

We find the note-taking issue frivolous.

Addendum

This is written after having received Chief Judge Danhof's vote to reverse because "the trial judge’s findings of fact are incomplete”. The trial court filed a seven-page opinion from which we extract some 15 factual findings as follows:

1. Plaintiff inconsistently contended that his interest in Car Parts Companies was not an ownership interest nor an equity interest but merely a security interest.

2. That plaintiff had his attorney prepare a document acknowledging that his sole interest in the Car Parts, Inc. was a security interest.

3. That plaintiff’s explanation of how the document came to be drafted was not credible.

4. That plaintiff at one time stated his activities were directed toward assisting his nephew, Mr. Siegel, in acquiring an interest in the Car Parts Companies.

5. That plaintiff suspected his nephew of improper dealings with the various companies.

6. That some of plaintiff’s machinations were directed toward deceiving his nephew.

7. That plaintiff was paid $5,540 in a check issued to him which was exchanged by him for cash in the amount of $5,540.

8. That thereafter an additional check in the sum of $2,500 was made payable to plaintiff.

9. That plaintiff’s conduct was inconsistent with allegations of ownership; but consistent with a debtor-creditor relationship.

10. That if plaintiff ever had an ownership interest he relinquished it for payments of $5,540 and $2,500 by the Car Parts Companies.

11. That plaintiff never made any cash investment for purchase of an interest in the Motor City Leasing Company but on the contrary he and his related companies were indebted to the leasing company.

12. That plaintiff was not a stockholder in Motor City Leasing Company.

13. That the claim against E & A Warehouse Limited Corp. was devoid of any basis in fact and no evidence was adduced to support such claim.

14. That the claim of ownership in E & A was based upon the giving of a favorable credit reference which was contrary to allegations that large amounts of money were owed to plaintiff’s related companies.

15. That plaintiff’s allegations were unsupported by proofs and his testimony unworthy of belief. We find compliance with GCR 1963, 517.1. The plaintiff submitted 63 exhibits and played overtones of numerous possible inferences and conclusions to be drawn therefrom. If the court rule means anything by directing that the findings be brief, definite and pertinent without over elaboration of detail or particularization of facts, it seems reasonable to conclude that the trial judge complied. The final sentence of 517.1 is:

"In the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it.”

Credibility was the whole ballgame. At the outset of the trial, the trial court heard testimony on a complaint of possible subornation of perjury. The trial court has efficiently enumerated the inconsistencies which led him to conclude that plaintiff was unworthy of belief. To require further elaboration without specific, definitive instructions to the trial court would be unduly burdensome and would result surely in another appellate review.

Affirmed. Costs to appellees.

D. E. Holbrook, Jr., J., concurred.