Giuseppe Balsamo v. Frank D'Anna ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
GIUSEPPE BALSAMO and CALOGERA UNPUBLISHED
BALSAMO, May 18, 2023
Plaintiffs/Counterdefendants-
Appellants,
v No. 361114
Oakland Circuit Court
DALCOMA PROPERTY, LLC, LC No. 2021-185914-CB
Defendant/Counterplaintiff-Appellee,
and
FRANK D’ANNA, DAMIANO RANDAZZO,
SHADY LANE DEVELOPMENT CO., LLC, and
FRANK MANCINI,
Defendants-Appellees.
Before: PATEL, P.J., and CAVANAGH and REDFORD, JJ.
PER CURIAM.
Guiseppe Balsamo1 claims that defendants Dalcoma Property, LLC, Frank D’Anna,
Damiano Randazzo, Shady Lane Development Co., LLC, and Frank Mancini fraudulently induced
him to relinquish his membership interest in Dalcoma over a dozen years ago in reliance on an
agreement that his membership interest would be returned to him when his immigration issues
were cured. When Balsamo’s citizenship issues were cured in June 2014, defendants failed to
return his membership interest. Balsamo alleges that this failure to return his interest was a breach
of the agreement and a conversion of his interest, among other things. But Balsamo did not file
1
The original complaint also named Guiseppe’s wife, Calogera Balsamo, as a plaintiff, but she
was omitted from the first amended complaint and only remained a party to the action as a
counterdefendant. Calogera is not a party to this appeal.
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his claims until January 2021. Because Balsamo commenced this action after the expiration of the
applicable statutes of limitations, we affirm the trial court’s grant of summary disposition in favor
of defendants.
I. BACKGROUND
Dalcoma, which was organized in February 2001, owns and operates a multi-unit
commercial property in Clinton Township, Michigan. Shady Lane is a member of and owns 78%
of Dalcoma. D’Anna, Randazzo, and Mancini are also members of Dalcoma and own the
remaining 22%. Balsamo alleges that he was or should also be a member of Dalcoma with a
membership interest of 12.5%.
Before Shady Lane acquired its interest in Dalcoma, defendants told Balsamo in 2009 that
it was necessary to remove his membership interest from Dalcoma’s records because his
immigration issues were adversely affecting Dalcoma’s business affairs. But Balsamo was
allegedly told that his membership interest would be returned to Dalcoma’s records “at the right
time” after his immigration issues were cured. According to Balsamo, his 12.5% interest went to
Randazzo in 2009 and, in exchange, Randazzo promised to pay Balsamo 50% of any income,
distributions, dividends, compensation or value he received annually.2 Balsamo allegedly never
received any money from his membership interest after 2009. In June 2014, Balsamo became a
United States citizen. Although Balsamo’s immigration issues were cured, defendants allegedly
told him it was not the right time to restore his membership interest. In October 2018, Randazzo
sent an e-mail to Balsamo’s son discussing refinancing of a loan for Dalcoma and stated, “If it
refinances it would be a good time to bring your Dad in.” But Balsamo’s membership interest was
not restored.
Balsamo filed this action on January 22, 2021. In June 2021, D’Anna, Dalcoma and Shady
Lane filed motions for summary disposition pursuant to MCR 2.116(C)(5), (7) and (8). Balsamo
filed his First Amended Complaint (FAC) on June 25, 2021, and defendants withdrew their
motions for summary disposition. The FAC stated nine counts: common-law and statutory
conversion (Count I), fraudulent misrepresentation (Count II), breach of contract – the membership
agreement (Count III), breach of contract – the agreement (Count IV), unjust enrichment (Count
V), breach of common-law and statutory fiduciary duties, MCL 450.4402; MCL 450.4404 (Count
VI), member oppression, MCL 450.4515 (Count VII), civil conspiracy (Count VIII), and
application for order compelling inspection of books and records and an accounting under MCL
450.4530 (Count IX). In July 2021, Dalcoma filed counterclaims against Balsamo and his wife,
but these claims were ultimately dismissed with prejudice pursuant to the stipulation of the parties
and are not at issue in this appeal.
Before the close of discovery, defendants filed renewed motions for summary disposition
seeking dismissal of Balsamo’s claims pursuant to MCR 2.116(C)(5), (7) and (8). Relevant to this
appeal, defendants argued that Counts I through VIII of the FAC were barred by the applicable
statutes of limitations because the claims accrued no later than June 2014 when Balsamo remedied
his immigration issues by becoming a United States citizen. Defendants maintained that Counts
2
Plaintiff refers to this transaction as the “Agreement.”
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I, VI, VII, and VIII were each governed by a three-year limitations period that expired in June
2017 and thus the claims were time-barred. And defendants asserted that Counts II, III, IV, and V
were each governed by a six-year limitations period that expired in June 2020 and thus the claims
were time-barred.
In response, Balsamo contended that all his claims were timely filed or, alternatively, that
the statutes of limitations were tolled under MCL 600.5855 because defendants fraudulently
concealed the claims until August 3, 2020, which is when Dalcoma notified him that he was no
longer a member and had no interest in the company. Balsamo acknowledged that he started
questioning defendants regarding the restoration of his interest after he became a citizen in June
2014, but he contended that his causes of action did not accrue at that time because defendants told
him that it was not the right time. He maintained that, pursuant to the terms of the agreement, the
triggering event for the restoration of his membership interest was “the right time.” According to
Balsamo, the agreement was not breached until defendants failed to restore his membership
interest in October 2018 when Randazzo said that it was a good time to bring Balsamo in. Balsamo
argued that even if his claims were not timely filed under the applicable statutes of limitations,
defendants fraudulently concealed the claims and thus under MCL 600.5855 he had two years
from August 3, 2020 to commence an action.
Defendants’ depositions were conducted after Balsamo responded to defendants’ motions
for summary disposition. Balsamo filed a motion to supplement his motion responses with new
information received in discovery. He also requested that the hearing on defendants’ motions for
summary disposition be postponed until after discovery closed. The trial court denied Balsamo’s
motion.
The trial court granted defendants’ motions for summary disposition without oral
argument. The trial court concluded that the six-year statute of limitations barred Balsamo’s
claims for fraudulent misrepresentation (Count II), breach of contract (Counts III and IV), and
unjust enrichment (Count V). The trial court also found that the three-year statute of limitations
barred Balsamo claims for conversion (Count I), civil conspiracy (Count VIII), breach of fiduciary
(Count VI), and member oppression (Count VII). The trial court based its determination on the
fact that Balsamo’s claims arose out of defendants’ alleged failure to return his membership
interest in Dalcoma in June 2014, when Balsamo resolved his immigration issues. The trial court
further found that fraudulent concealment did not toll the statutes of limitations because Balsamo
failed to allege any specific acts or misrepresentations made by defendants. The trial court
dismissed Counts I through VIII pursuant to MCR 2.116(C)(7).3 Balsamo filed a motion for
reconsideration, which the court denied. Balsamo now appeals.
II. STANDARD OF REVIEW
“We review de novo a trial court’s decision on a motion for summary disposition.” El-
Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). Summary
disposition is appropriate under MCR 2.116(C)(7) when a claim is barred by a statute of
3
The trial court also dismissed Count IX pursuant to MCR 2.116(C)(8). But Balsamo does not
challenge that portion of the court’s order on appeal.
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limitations. Whether a statute of limitations bars a claim is a question of law that this Court reviews
de novo when the underlying facts are not disputed. O’Leary v O’Leary, 321 Mich App 647, 651;
909 NW2d 518 (2017).
III. STATUTES OF LIMITATIONS
Balsamo argues that the trial court erred in finding that Counts I, II, IV, V, VII, and VIII
were time-barred by their applicable statutes of limitations and dismissing those claims. We
disagree.4
A. COUNT I – COMMON LAW AND STATUTORY CONVERSION, EMBEZZLEMENT,
DISPOSITION, AND POSSESSION OF STOLEN PROPERTY
It is undisputed that Balsamo’s conversion claim is governed by the three-year period of
limitations set forth in MCL 600.5805(2). Tillman v Great Lakes Truck Ctr, Inc, 277 Mich App
47, 49; 742 NW2d 622 (2007); Brennan v Edward D Jones & Co, 245 Mich App 156, 158; 626
NW2d 917 (2001). Conversion is an act of dominion over another’s personal property and occurs
when wrongful dominion is asserted. Brennan, 245 Mich App at 158. Balsamo alleged in the
FAC that defendants violated MCL 600.2919a when they “converted [his] 12.5% membership
interest in Dalcoma, which was supposed to be returned to Balsamo when his citizenship issues
were cured.” He also alleged that defendants “converted [his] income, distributions, dividends,
remuneration, compensation and value, he was supposed to receive under the Agreement.” He
further alleged that defendants “converted [his] income, distributions, dividends, remuneration,
compensation and value, he was supposed to receive as a 12.5% member of Dalcoma.”
Balsamo argues that the trial court erroneously concluded that his conversion claim accrued
in June 2014 when his citizenship and immigration issues were resolved. He contends that,
pursuant to the terms of the agreement, the triggering event for the restoration of his membership
interest was “the right time” and thus the conversion did not occur until defendants failed to restore
his membership interest in October 2018—when Randazzo said that it was a good time to bring
Balsamo in. Generally, a limitation period begins to accrue “at the time the wrong upon which the
claim is based was done regardless of the time when damage results.” MCL 600.5827. Balsamo
alleged in the FAC that his immigration issues were cured in June 2014 when he became a citizen,
but defendants “have not returned [his] membership interest in Dalcoma.” He also alleged that he
“has never received any distributions, compensation or remuneration from Defendants.”
Accepting Balsamo’s allegations as true, in 2009 (or earlier) defendants exercised
dominion over the income, distributions, dividends, remuneration, compensation and value that he
was supposed to receive as a 12.5% member of Dalcoma. In 2009, defendants exercised dominion
over the income, distributions, dividends, remuneration, compensation and value that he was
4
Balsamo also asserts in his introduction that the trial court erred in denying his request to
supplement his response with evidence produced during discovery. But he has waived this issue
by failing to include it in his statement of questions presented and thus we decline to review it.
River Investment Group, LLC v Casab, 289 Mich App 353, 360; 797 NW2d 1 (2010); MCR
7.212(C)(5).
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supposed to receive under the 2009 agreement. Finally, defendants exercised dominion over his
12.5% membership interest in Dalcoma in 2014 when his citizenship issues were cured and they
failed to restore his membership interest. Because Balsamo did not file his claim until January 22,
2021, the trial court did not err in determining that his conversion claim was barred by the three-
year statute of limitations.
B. COUNT II – FRAUDULENT MISREPRESENTATION
It is undisputed that Balsamo’s fraudulent misrepresentation claim is governed by a six-
year limitations period. MCL 600.5813; Adams v Adams, 276 Mich App 704, 710; 742 NW2d
399 (2007). The limitations period begins to run from the time the claim accrues, and the claim
“accrues at the time the wrong upon which the claim is based was done regardless of the time when
damage results.” MCL 600.5827. “Common-law fraud or fraudulent misrepresentation entails a
defendant making a false representation of material fact with the intention that the plaintiff would
rely on it, the defendant either knowing at the time that the representation was false or making it
with reckless disregard for its accuracy, and the plaintiff actually relying on the representation and
suffering damage as a result.” Alfieri v Bertorelli, 295 Mich App 189, 193; 813 NW2d 772 (2012).
A claim for fraudulent misrepresentation requires an affirmative false representation intended to
deceive. M & D, Inc v W B McConkey, 231 Mich App 22, 27; 585 NW2d 33 (1998). A plaintiff
must also show that any reliance on defendants’ representations was reasonable. Foreman v
Foreman, 266 Mich App 132, 141–142; 701 NW2d 167 (2005).
Accepting the allegations in the FAC as true, Balsamo does not allege any specific acts or
events committed by defendants that occurred within the six-year period before he filed his
complaint in January 2021, except for his allegation that he “would receive a return of his
membership interest when a loan was refinanced [sic] 2018, and this never occurred.”5 This
allegation is based on an October 24, 2018 e-mail from Randazzo to Balsamo’s son that stated in
pertinent part:
They are thinking of refinancing the building again because right now it’s a floating
rate. Current rate is 6.25% and adjusting every month.
If it refinances, it would bring a good time to bring your dad in.
Considering this e-mail in a light most favorable to Balsamo, it does not clearly state that his
membership interest would be returned. The e-mail states “if it refinances,” not when, as Balsamo
alleged. And it states, “it would be a good time to bring your Dad in,” not this is the “right time”
to restore Balsamo’s interest. Moreover, the e-mail was not sent to Balsamo; it was only sent to
his son. Balsamo had knowledge since June 2014 that his immigration issues were cured and his
right to restoration of his membership interest was triggered. Because defendants failed to restore
Balsamo’s membership interest when he fulfilled his part of the agreement in June 2014, the trial
5
In his brief on appeal, Balsamo asserts that defendants conspired to defraud him between 2018
and 2022. But this allegation was not included in the FAC.
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court did not err in concluding that the fraudulent misrepresentation claim accrued in June 2014
and thus was time-barred.
C. COUNT IV – BREACH OF CONTRACT – THE AGREEMENT
It is undisputed that Balsamo’s breach of contract claim is governed by a six-year
limitations period. MCL 600.5813; Adams v Adams, 276 Mich App 704, 710; 742 NW2d 399(2007). The period of limitations begins to run from the time the claim accrues, and the claim
“accrues at the time the wrong upon which the claim is based was done regardless of the time when
damage results.” MCL 600.5827. To determine what constituted the “wrong upon which the
claim is based,” a court must first look to the parties’ agreement. Scherer v Hellstrom, 270 Mich
App 458, 463; 716 NW2d 307 (2006).
Balsamo alleged in the FAC that defendants breached the 2009 agreement that required
him to relinquish his membership interest in Dalcoma until he cured his immigration issues.
Balsamo alleged that he upheld his end of the agreement by curing his immigration issues and
becoming a United States citizen in June 2014, but defendants never fulfilled their obligation to
return his membership interest and they never paid him 50% of money given to Randazzo. On
appeal, Balsamo argues that defendants breached the contract on October 24, 2018, when
defendant indicated that it was the right time to restore his interests, but failed to do so. As
discussed above, the October 2018 e-mail does not clearly state that Balsamo’s membership
interest would be returned. Moreover, Balsamo had knowledge since June 2014 that his
immigration issues were cured and his right to restoration of his membership interest was triggered.
“For a plaintiff to be sufficiently apprised of a cause of action, a plaintiff need only be aware of a
possible cause of action.” The Reserve at Heritage Village Ass’n v Warren Fin Acquisition, LLC,
305 Mich App 92, 123; 850 NW2d 649 (2014) (cleaned up). Whether a plaintiff should have
known of a cause of action is judged under an objective standard. Prentis Family Foundation v
Karmanos Cancer Institute, 266 Mich App 39, 45 n 2; 698 NW2d 900 (2005). Because defendants
failed to restore Balsamo’s membership interest when he fulfilled his part of the agreement in June
2014, the trial court did not err in concluding that the breach of contract claim accrued in June
2014 and thus was time-barred.6
D. COUNT V – UNJUST ENRICHMENT
A claim for unjust enrichment is the equitable counterpart of a legal claim for breach of
contract. Keywell & Rosenfeld v Bithell, 254 Mich App 300, 328; 657 NW2d 759 (2002). Statutes
of limitation may apply by analogy to equitable claims. Taxpayers Allied for Constitutional
Taxation v Wayne Co, 450 Mich 119, 127 n 9; 537 NW2d 596 (1995). By analogy, the six-year
limitations period for breach of contract applies to the claim for unjust enrichment. Balsamo
argues that defendants were unjustly enriched when they converted his interest in Dalcoma by
breaching the 2009 agreement. As discussed above, the wrongful conduct that is the basis for
Balsamo’s claims occurred in June 2014, when defendants refused to restore his membership
6
Balsamo maintains that he is owed 50% of distributions received by Randazzo between 2018 and
2021. But the claim “accrues at the time the wrong upon which the claim is based was done
regardless of the time when damage results.” MCL 600.5827.
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interest in Dalcoma after he cured his immigration issues. We find that the trial court did not err
in concluding that the unjust enrichment claim accrued in June 2014 and thus was time-barred.
E. COUNT VI – BREACH OF FIDUCIARY DUTY
It is undisputed that Balsamo’s breach of fiduciary duty claim is subject to a three-year
statute of limitations, MCL 600.5805(2), and the claim accrues “when the beneficiary knew or
should have known of the breach.” Prentis Family Foundation, 266 Mich App at 47.7 Accepting
the allegations in the FAC as true, Balsamo does not allege any specific acts or events committed
by defendants that occurred within the three-year period before he filed his complaint in January
2021. As discussed above, the wrongful conduct that is the basis for Balsamo’s claims occurred,
at the latest, in June 2014, when defendants refused to restore his membership interest in Dalcoma
after he cured his immigration issues. We find that the trial court did not err in concluding that the
breach of fiduciary claim accrued in June 2014 and thus was time-barred
F. COUNT VII—MEMBER OPPRESSION
“MCL 450.4515(1) provides a cause of action for members of an LLC when the managers’
actions are ‘illegal or fraudulent or constitute willfully unfair and oppressive conduct toward the
limited liability company or the member.’ ” Frank v Linkner, 500 Mich 133, 151; 894 NW2d 574(2017) (cleaned up). “The harm that is actionable under MCL 450.4515 is the substantial
interference with the interests of the member as a member.” Id. (cleaned up). A plaintiff’s action
for member oppression accrues when the harm plaintiff alleges first occurred, “i.e., when
defendants’ actions allegedly interfered with the interests of a plaintiff as a member, making the
plaintiff eligible to receive some form of relief under MCL 450.4515(1).” Id. at 153. MCL
450.4515(1)(e) provides for a three-year statute of limitations from the date the cause of action
accrues or “within 2 years after the member discovers or reasonably should have discovered the
cause of action under this section, whichever occurs first.” (Emphasis added).
Accepting Balsamo’s allegations as true, defendants’ substantial interference took place in
2009 when defendants colluded to extinguish his interest in Dalcoma, and in 2014 when defendants
did not restore his membership interest after he became a United States citizen. Because both dates
are well outside of the three-year statute of limitations, Frank, 500 Mich at 151; MCL
450.4515(1)(e), we find that the trial court did not err in concluding that Balsamo’s member
oppression claim was time-barred.
G. COUNT VIII – CIVIL CONSPIRACY
Balsamo argues that if this Court reverses the trial court’s dismissal on any of his tort
claims, the civil conspiracy claim would also survive. “A civil conspiracy is a combination of two
or more persons, by some concerted action, to accomplish a criminal or unlawful purpose, or to
accomplish a lawful purpose by criminal or unlawful means.” Swain v Morse, 332 Mich App 510,
7
On appeal, Balsamo simply states, “For the reasons stated above, this claim accrued in 2018.”
Balsamo has not provided any analysis or relevant legal authority for this argument. Accordingly,
we need not address this issue. See Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998).
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530; 957 NW2d 396 (2020) (quotation marks and citation omitted). “Liability does not arise from
a civil conspiracy alone; rather, it is necessary to prove a separate, actionable tort.” Id. at 530 n
13. If a plaintiff fails to establish an underlying tort, the civil conspiracy claim must fail. Advocacy
Org for Patients & Providers v Auto Club Ins Ass’n, 257 Mich App 365, 384; 670 NW2d 569(2003), aff’d 472 Mich 91 (2005). As discussed above, the trial court properly dismissed all of
Balsamo’s claims that purportedly supported his civil conspiracy claim. Accordingly, we find that
the trial court properly dismissed his civil conspiracy claim.
IV. FRAUDULENT CONCEALMENT
Balsamo argues the trial court erred in finding that he failed to plead specific acts or
misrepresentations that precluded him from discovering his claims and thus was not entitled to
tolling of the applicable statutes of limitations based on fraudulent concealment. We disagree.
MCL 600.5855 permits the tolling of a statutory limitations period for two years if the
defendant has fraudulently concealed the existence of a claim:
If a person who is or may be liable for any claim fraudulently conceals the existence
of the claim or the identity of any person who is liable for the claim from the
knowledge of the person entitled to sue on the claim, the action may be commenced
at any time within 2 years after the person who is entitled to bring the action
discovers, or should have discovered, the existence of the claim or the identity of
the person who is liable for the claim, although the action would otherwise be
barred by the period of limitations.
“Fraudulent concealment means employment of artifice, planned to prevent inquiry or
escape investigation, and mislead or hinder acquirement of information disclosing a right of
action.” Doe v Roman Catholic Archbishop of Archdiocese of Detroit, 264 Mich App 632, 642;
692 NW2d 398 (2004) (cleaned up). To invoke tolling under the fraudulent-concealment statute,
a “plaintiff must plead in the complaint the acts or misrepresentations that comprised the fraudulent
concealment” and “prove that the defendant committed affirmative acts or misrepresentations that
were designed to prevent subsequent discovery.” Sills v Oakland Gen Hosp, 220 Mich App 303,
310; 559 NW2d 349 (1996). “If there is a known cause of action there can be no fraudulent
concealment which will interfere with the operation of the statute, and in this behalf a party will
be held to know what he ought to know . . . .” Doe, 264 Mich App at 643 (cleaned up).
In his first amended complaint, Balsamo makes the following allegations:
34. . . . All defendants continued to make a series of false representations to
Plaintiff as to why he had to continue to waiting to restore his interest on Dalcoma’s
books and records, which Plaintiff relied upon. Plaintiff has now learned that these
were false statements made by Defendants in an effort to unlawfully convert
Plaintiff’s membership interest in Dalcoma.
35. Defendants continue to make excuses and false representations as to why
the “time is not right” to return Plaintiff’s interest in Dalcoma.
* * *
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43. Plaintiff just recently learned of the fraud and had no way of discovering
the fraud prior to recent discussions with Defendants, individuals familiar with
Defendants, and review of documents received in response to certain complaints
filed in 2020.
These were the only allegations contained in Balsamo’s first amended complaint pertaining
to fraud or misrepresentations. Balsamo did not cite MCL 600.5855 in his complaint. Balsamo
did not claim that defendants affirmatively acted or made misrepresentations to prevent him from
discovering his alleged claims. Balsamo claimed that defendants fraudulently induced him into
allowing his membership interest to be removed from Dalcoma’s records and assigned to
Randazzo. These allegations do not support a claim that defendants acted fraudulently to conceal
Balsamo’s potential cause of action. Balsamo failed to allege or support that defendants “engaged
in some arrangement or contrivance of an affirmative character designed to prevent subsequent
discovery.” Prentis Family Foundation, 266 Mich App at 48. Moreover, Balsamo was aware that
he had not received 50% of any money that Randazzo may have received for his membership
interest since 2009. Consequently, Balsamo failed to plead a claim of fraudulent concealment that
would have tolled the applicable statutes of limitations for his claims.
Finally, Balsamo asserts that even if his claims were barred by the statutes of limitations,
he should still be allowed to proceed with his tort claims and breach of contract claims to collect
distributions that he would have been entitled to within three years and six years of filing this
action. We disagree. Balsamo has simply stated this proposition in a singular sentence. He has
failed to provide any analysis or relevant legal authority for this argument. Accordingly, we need
not address this issue and decline to do so. See Wilson, 457 Mich at 243.
Affirmed.
/s/ Sima G. Patel
/s/ Mark J. Cavanagh
/s/ James Robert Redford
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