                            STATE OF MICHIGAN

                            COURT OF APPEALS



YVONNE T. CORBAT,                                                  UNPUBLISHED
                                                                   July 19, 2018
               Plaintiff-Appellant,

v                                                                  No. 338753
                                                                   Midland Circuit Court
MIDLAND COUNTY AGRICULTURAL AND                                    LC No. 15-003013-CZ
HORTICULTURAL SOCIETY, MARGARET
WEGNER, TAMMI MYERS, DON ANGER,
ROXANNE WHEELER,

               Defendants-Appellees,
and

DAWN ZASKE,

               Defendant.



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

PER CURIAM.

        Plaintiff appeals the trial court’s order granting defendants’ motions for summary
disposition pursuant to MCR 2.116(C)(10). We affirm.

                            I. FACTS AND PROCEDURAL HISTORY

        Plaintiff was a board member of defendant Midland County Agricultural and
Horticultural Society (“the Fair”) for 40 years until she was not reelected in 2014. The Fair, an
organization that runs the Midland County Fair, is a domestic nonprofit corporation that is
subject to the statutory requirements of the Michigan Agricultural or Horticultural Societies Act,
MCL 453.231 et seq. Defendants Margaret Wegner, Tammi Myers, Don Anger, Roxanne
Wheeler, and Dawn Zaske (“individual defendants”) are board members of the Fair.

       To become a member of the Fair, an individual has to submit a completed membership
card and pay a $16 fee. Membership is not limited to residents of Midland County, but
candidacy for a board seat is limited to members residing in Midland County. Board
membership is an unpaid position, and there are no financial benefits to being a member of the
board. After membership cards are submitted, the Fair’s office manager uses the information


                                               -1-
listed on them to generate a mailing list for ballots for the board of directors’ election. The
mailing list is filed with the county clerk. Although people are free to purchase memberships
after the list is compiled, only those who became members at least 30 days before the relevant
annual meeting may vote. Ballots are mailed to the addresses provided on the membership
cards. Completed ballots are mailed to the county clerk, who tallies them and provides the
results to the board of directors.

        The evidence presented demonstrated, and it is not disputed in this appeal, that for many
years, members of the Fair, including plaintiff, filled out membership cards on behalf of other
individuals, usually at that individual’s request. Members also gifted membership to friends and
family members, and paid the membership dues for these individuals. On most occasions, the
member that gifted the membership would fill out the membership cards on behalf of the
individuals that received the membership as a gift. Because of this practice, the addresses listed
for the prospective members were not always entirely accurate. The Fair took these addresses at
face value and did not verify them for accuracy; it relied on people to provide the correct
address. The only time addresses listed on the membership cards were verified was when the
member sought to become a candidate for the board. There was also evidence that when the
ballots were mailed to the addresses listed on them, some members filled out ballots on behalf of
family members, usually with permission, and mailed them back to the county clerk.

        After losing the Board election, plaintiff sued, seeking injunctive relief in the form of
nullification of the 2014 board of directors’ election. She also asked the court to issue a
declaratory judgment that the Fair’s membership process violated MCL 453.233, which provides
as follows:

               Any person who has attained the age of 18 years and shall pay into the
       treasury of the society, at a time and in an amount and manner as the bylaws
       direct, a sum of money not to exceed $25.00, and subscribe to the articles of
       association shall be a stockholder or member therein and entitled to all the
       privileges and immunities thereof.

        Plaintiff claimed that the Fair’s acceptance of the membership cards “that are deficient in
formation, signature, and acknowledgement of the requisite fee” violates MCL 453.233. She
also claimed that the board violated this provision by preparing the mailing list, distributing the
ballots for the board election, and tallying the ballots before the annual meeting. As to the
individual defendants, who were members of the board during the 2014 calendar year, plaintiff
claimed that they had breached their fiduciary duty by allowing such procedures.

       Plaintiff relies heavily on the provisions of MCL 453.233, which requires members to
“subscribe to the articles of the association.” She asserts that the term “subscribe,” means to sign
one’s signature, and that since some members did not sign the membership card, they were not
legal members of the Fair. She also argued that some membership forms were void because they
were submitted and paid for by persons other than the new members themselves.

       The trial court granted the summary disposition motions brought by the Fair and by the
individual defendants. The court held, among other things, that the Fair’s bylaws comply with
MCL 453.233 because the statute does not require a signature on the membership card.


                                                -2-
                                        II. ANALYSIS

                            A. STATUTORY INTERPRETATION

       Plaintiff’s claim rests, in large measure, on her argument that the word “subscribe,” as
used in MCL 453.233, means that a signature is required to complete a membership card. We
disagree.1

        A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Joseph
v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012). Summary disposition is
proper if there is “no genuine issue regarding any material fact and the moving party is entitled
to judgment as a matter of law.” Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d
868 (2008). The court considering the motion “must consider the affidavits, pleadings,
depositions, admissions, and other evidence submitted by the parties in the light most favorable
to the party opposing the motion.” Joseph, 491 Mich at 206. All reasonable inferences are to be
drawn in favor of the nonmovant. Dextrom v Wexford Co, 287 Mich App 406, 415; 789 NW2d
211 (2010).

       Article II of the Fair’s bylaws provides for qualification of membership:

              Section 1: Application. The members of this corporation are those
       persons having membership rights in accordance with the provisions of these
       Bylaws . . . .

                                            * * *

               Section 3: Qualifications. To qualify for and be admitted to membership
       in this corporation, a candidate must support the purposes of this corporation as
       set forth in these Bylaws. . . .

Plaintiff argues that the Fair’s bylaws are deficient and contrary to the provisions of MCL
453.233 because they do not require the individuals to “subscribe” to the articles of the
corporation by signing at the bottom of the membership cards. Plaintiff contends that the word
“subscribe,” as used in the statute, means strictly to “sign.” MCL 453.233 provides as follows:

               Any person who has attained the age of 18 years and shall pay into the
       treasury of the society, at a time and in an amount and manner as the bylaws
       direct, a sum of money not to exceed $25.00, and subscribe to the articles of
       association shall be a stockholder or member therein and entitled to all the
       privileges and immunities thereof. [Emphasis added.]


1
  This Court reviews de novo a trial court’s decision to grant summary disposition under MCR
2.116(C)(10). Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). Further, issues of
statutory interpretation are reviewed de novo. Speicher v Columbia Twp Bd of Trustees, 497
Mich 125, 133; 860 NW2d 51 (2014).



                                               -3-
        In Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013) (citations
omitted), the Michigan Supreme Court laid out the well-established principles of statutory
interpretation:

         When interpreting a statute, we follow the established rules of statutory
         construction, the foremost of which is to discern and give effect to the intent of
         the Legislature. To do so, we begin by examining the most reliable evidence of
         that intent, the language of the statute itself. If the language of a statute is clear
         and unambiguous, the statute must be enforced as written and no further judicial
         construction is permitted. Effect should be given to every phrase, clause, and
         word in the statute and, whenever possible, no word should be treated as
         surplusage or rendered nugatory. Only when an ambiguity exists in the language
         of the statute is it proper for a court to go beyond the statutory text to ascertain
         legislative intent.

        Plaintiff’s argument lacks merit for the following reasons. First, although the word
“subscribe” is not defined in the statute, its meaning is not limited to signing one’s name but is
also subject to several other meanings, which includes to “agree or assent to.” See Black’s Law
Dictionary (10th ed), p 1655 (defining the word “subscribe,” to include, “To be in favor; to
adhere”); Random House Webster’s College Dictionary (1997) (defining the word “Subscribe,”
to include, “To agree or assent to.”).

        In support of her argument that “subscribe” may only mean to “sign,” plaintiff refers us
to Kloian v Domino’s Pizza LLC, 273 Mich App 449; 733 NW2d 766 (2006). There, the Court
defined the word “subscribe,” as used in MCR 2.507(H).2 This rule provides that a settlement or
other agreement between parties at trial is not binding unless made in open court or “is in writing
subscribed by the party against whom the agreement is offered.” Plaintiff fails to recognize that
the Kloian Court indicated in its opinion that the word, “subscribe” does not necessarily mean to
“sign,” and that “ ‘subscribed’ is a different word from ‘signed.’ ” Kloian, 273 Mich App at
459. According to the Court, “[W]e must treat ‘in writing and signed’ differently from a
‘writing, subscribed,’ ” and it held that a document containing typed names rather than a
signature was sufficient. Id. at 459-460.

        Second, plaintiff’s argument fails to recognize that statutory language “cannot be read in
a vacuum. Instead, [i]t exists and must be read in context with the entire act, and the words and
phrases used there must be assigned such meanings as are in harmony with the whole of the
statute . . . .” G.C. Timmis & Co v Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d 710
(2003). The language of the statute provides, in relevant part, that a prospective member shall
“subscribe to the articles of association . . . .” MCL 453.233. Nowhere in the statue does it
require that the prospective member “subscribe to the membership card.” Indeed, as the trial
court found, the statute does not even require membership cards.




2
    This provision is now MCR 2.507(G).



                                                  -4-
     Accordingly, we reject plaintiff’s argument that the statute mandates the signing of the
membership card.

                              B. BREACH OF FIDUCIARY DUTY

       Plaintiff also argues that the trial court erred by concluding that the individual defendants
did not breach their fiduciary duties to her. We disagree because plaintiff has not presented
evidence establishing a genuine issue of material fact that would allow a fiduciary duty claim to
go forward.

       The Michigan Non-profit Corporation Act, MCL 450.2489 et seq., provides for claims of
oppressive conduct:

               (1) A director of a corporation that is organized on a directorship basis, a
       shareholder of a corporation that is organized on a stock basis, or a member of a
       corporation that is organized on a membership basis may bring an action in the
       circuit court in which the principal place of business or registered office of the
       corporation is located to establish that the acts of the directors, shareholders,
       members, or others in control of the corporation are Illegal, fraudulent, or
       willfully unfair and oppressive to the corporation or to the director, member, or
       shareholder. . . .

                                              * * *

               (2) As used in this section, “willfully unfair and oppressive conduct” with
       respect to a member or shareholder means a continuing course of conduct or a
       significant action or series of actions that substantially interferes with the rights or
       interests of a member or shareholder as a member or shareholder. The term does
       not include conduct or actions that are permitted by an agreement, the articles of
       incorporation, the bylaws, or a consistently applied written corporate policy or
       procedure. [Emphasis added.]

In her amended complaint, plaintiff alleged that the individual defendants, in their capacity as
board members, breached their fiduciary duty by: (a) circulating and providing membership
application cards to any requesting party; (b) engaging in a course of conduct to fabricate and
complete, without permission, membership cards with the intent to create ghost membership in
the Fair; (c) accepting and knowingly assigning membership rights to persons that did not seek
or pay for membership; (d) accepting and assigning membership rights to persons that did not
tender a completed membership card; (e) allowing for courtesy membership that did not require
the payment of the necessary fee, in order to accept and assign membership rights to such
noncompliant membership applicants; and (f) reporting and approving 634 memberships.

        Plaintiff has failed to proffer support for her claim that the individual defendants engaged
in “illegal, fraudulent, or willfully unfair and oppressive conduct” against her. There was ample
evidence that for years, members, including plaintiff, have filled out membership cards on behalf
of prospective members, usually family members and friends and that this practice was not
directed at plaintiff. Most significant, there was no evidence that this long-standing practice was
used to influence the 2014 board election or that it was used to deprive plaintiff of her position


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on the board. There was also no evidence that memberships were obtained without payment of
the $16 fee.

         Defendant Margaret Wegner testified that she filled out membership cards for Chase,
Dan, and Savannah Finney. According to Wegner, Chase’s mother asked her to fill out the
membership card on his behalf, Dan’s wife requested the membership on Dan’s behalf, and
Savannah’s mother requested the same on her behalf. Wegner paid for those memberships as a
gift, and the address listed on the membership cards for the Finney family was the correct
address. Wegner also completed membership cards for Pat, Dave, and Joe Chritz, at the request
of Pat Chritz, Dave and Joe’s mother. She was sure that Pat gave her cash to purchase the
membership cards. She knew that Dave and Joe did not reside at the address indicated on the
membership card, but stated that Pat instructed her to send the cards to her address. Wegner
stated that she had never submitted a membership card to the Fair office without submitting a fee
with it.

       Defendant Tammi Myers is alleged to have filled out membership cards for Myron, Eric,
Lana, and Judy Greene. She admitted to filling out membership cards for the Greenes, with the
help of the Fair manager, Trish Steele, at the request of Myron Greene. Myers paid for the
membership cards as gifts to the Greenes.

       Defendant Don Anger is alleged to have filled out membership cards for 14 individuals—
Gaylia, Lori, Linda, Dale, Neil, and Marsha Anger; Richard and Jere Geeseman; Jim and Lois
Allen; Adrienne and James Essar; and Adam Erin Ruchert. Anger averred that the 14 individuals
were all his relatives, and that he paid for all the memberships as gifts from his personal funds.
He stated that he personally completed membership cards for his wife Gaylia, and his daughter,
Lori, with their permission. He did not personally complete the other membership cards but was
aware that they were completed by his daughter and the Fair manager, with the permission of the
individuals. According to Anger, “Of these, per the membership cards, Gaylia Anger, Lori
Anger, Linda Anger, Dale Anger, Neil Anger, Marsha Anger, Don Anger, Richard Geeseman,
and Jere Geeseman (wife, daughter, sister, brother, sister-in-law, nephews) all had the same
address listed on the membership cards” and “[t]he remaining memberships, contained different
addresses where those people were believed to reside.”

        Defendant Roxanne Wheeler is alleged to have filled out membership card for Ruth,
Grace, and Edwin Amazona, and Pam and Mark Schneider. Wheeler admitted to filling out
membership cards for the individuals; however, she averred that it was at their request and with
their permission. She explained that she used her address for the Amazonas because they reside
in Hawaii, and that they had requested that she use her Michigan address so that they would
receive their ballots. Wheeler also testified that she gave the Schneiders their ballots when they
arrived.

         Wheeler is also accused of completing membership cards for Beth Koon’s family. She
explained that Beth Koon was her friend, and that she bought the memberships as a gift. Beth
testified that Wheeler offered to buy memberships for herself, her husband, daughter, mother-in-
law Margie Kirk, and her husband, Gene Kirk, as a gift, and that she accepted. Beth instructed
Wheeler to mail the Kirks’ ballots to her house. Beth’s daughter, Breanna, testified that she gave
Beth permission to have Wheeler fill out her membership card. Wheeler testified that she


                                               -6-
changed a few addresses on some of the membership cards to her address, and explained that
those individuals had indicated to her that they were moving and had asked that their ballots be
mailed to Wheeler’s home. She averred, however, that when the ballots for the individuals
arrived, she gave them their ballots.

        In her deposition testimony, plaintiff admitted that it was proper for one family member
to sign up other family members as long as they used the proper address. When questioned
about the allegation in her complaint about “ghost memberships,” plaintiff responded, “I would
say it should be almost bogus addresses instead of ghost memberships . . . .” She admitted that
she did not find anyone or talk to anyone who stated that they would not have agreed to be
members or would have objected to being made a member. According to plaintiff, the
complaints were, “I didn’t even know I was a member.” When asked how plaintiff knew that the
people that became members did not give their permission to be members, plaintiff responded, “I
really don’t know that.” She stated that it was also permissible that many of the membership
cards were not signed. In fact, plaintiff testified that the membership cards she purchased for
herself and her family members were filled out and signed by a Nic Hall.

       Regarding her allegation that the individual defendants fabricated and completed
membership cards on behalf of other people without permission, plaintiff admitted that she was
unaware of “ghost” members, and conceded that the only reason that she was asserting the
breach of fiduciary duty claim against the individual defendants was because they did not have
the proper address on the membership cards for the individuals they signed up. This is not
enough to establish illegal, fraudulent, or willful unfair and oppressive conduct.

       Finally, plaintiff’s assertion that the individual defendants filled out ballots on behalf of
other members, without their permission, is not supported by the evidence. Apart from
defendant Wheeler, who admitted to filing out ballots on behalf of two other families, with their
permission, the remaining individual defendants testified that they did not vote on behalf of any
member. Wegner testified that she had never completed a ballot on behalf of any person other
than herself. Anger testified that the only ballot he received in the mail was his, that he only
voted his own ballot in the 2014 election, and that he did not vote on behalf of other members of
his family. There is no evidence that Myers filled out ballots on behalf of the persons for whom
she completed membership cards. There is also no evidence that defendants acted in concert
with each other to permit Wheeler or any other person to fill out ballots on behalf of other
individuals for the purpose of depriving plaintiff of her position on the board.

        Office assistant for Vital Statistics at the Midland County Clerk’s Office, Amanda
Dikeman, who is responsible for overseeing the election process, testified that on some
occasions, multiple ballots were received in the same envelope and that sometimes the writing on
the ballots looked the same. Relying on this testimony, plaintiff concludes that “[a]ll this
evidence demonstrates that Defendants facilitated and participated in what was essentially proxy
voting (filing out ballots for another) and assigning membership rights without the member’s
consent . . . .” However, plaintiff misconstrues Dikeman’s testimony, which did not state that it
was the individual defendants that returned the envelopes with multiple ballots. Although
Dikeman testified that ballots did not always come back in one ballot per envelope because some
families would return multiple ballots in the same envelope, she stated that returning multiple
ballots in an envelope was not unusual because she had seen it done in previous years.


                                                -7-
        Plaintiff further argues that the individual defendants breached their fiduciary duty by
engaging in proxy voting, which is prohibited under the bylaws. Wheeler testified that she filled
out more than one ballot and that she did so with oral permission. This argument lacks merit
because mere oral permission to vote on someone’s behalf is not enough to establish proxy. A
proxy is defined as, “[A]uthority or power to act for another: a document giving such authority;
specif[ically] a power of attorney authorizing a specified person to vote corporate stock.”
Merriam-Webster’s Collegiate Dictionary (11 ed). Additionally, the Michigan Nonprofit
Corporations Act, MCL 450.2101 et seq, provide for “methods [that] constitute a valid means by
which a shareholder, member, or person entitled to vote . . . may grant authority to another
person to act as proxy.” MCL 450.2421(5). A thorough reading of the provision shows that
such authority must be in writing. In this case, there is no evidence of any written authority from
members to other members to vote on their behalf.

        Accordingly, the trial court properly granted defendants’ motion for summary disposition
on this issue because plaintiff has not presented evidence establishing a genuine issue of fact that
would allow her breach of fiduciary duty claim to go forward.3

       Affirmed.



                                                             /s/ Cynthia Diane Stephens
                                                             /s/ Douglas B. Shapiro
                                                             /s/ Michael F. Gadola




3
 We note that although plaintiff’s claim was properly dismissed, her allegations and the record
do raise concerns about the propriety of defendant society’s election process, and that defendant
would be wise to assure that the integrity of its electoral procedures does not give rise to such
questions in the future.



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