Patrick J McCourt v. Kenneth C Fowler, 330766

Plaintiff (McCourt) sued derivatively as a limited partner of CHP-98, a District of Columbia limited partnership that itself was a limited partner of Pine Villa, alleging general partners of Pine Villa engaged in unfair conduct that resulted in CHP-98’s interest being purchased out at an unfair price.
This Court previously reversed a (C)(8) dismissal and remanded for further proceedings to allow consideration of factual materials about plaintiff’s status as a CHP-98 partner at filing.
On remand defendants moved for summary disposition under MCR 2.116(C)(10), presenting CHP-98’s 2012 Form 1065 marked "Final return" and D.C. records showing CHP-98’s status revoked effective September 4, 2012.
Plaintiff responded with a single piece of evidence: a check dated August 6, 2014 from CRI, Inc. to plaintiff for $62,166.61, arguing it evidenced a still-existing partnership distribution and thus CHP-98’s continued existence when he filed in August 2013.
Defendants produced an affidavit explaining CRI, as former general partner, had issued earlier checks in 2012 that plaintiff never cashed; the 2014 check was a reissue of those earlier amounts, not an indication CHP-98 still existed in 2013.
The trial court granted (C)(10) summary disposition, concluding CHP-98 had ceased to exist before plaintiff filed and plaintiff therefore lacked the status required to bring a derivative action; the Court of Appeals affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiff was a partner of CHP-98 when he filed (a statutory requirement for derivative suit)	McCourt: the August 6, 2014 check evidences a final partnership distribution and shows CHP-98 existed past August 2013, so he was a partner when he filed	Defendants: documentary evidence (2012 final tax return and D.C. revocation effective Sept. 4, 2012) shows CHP-98 ceased in 2012; the 2014 check was reissued by CRI for earlier 2012 distributions and does not prove CHP-98 existed in 2013	Held: Plaintiff failed to raise a genuine factual dispute; CHP-98 ceased by Sept. 2012, so plaintiff was not a partner when suit was filed; summary disposition affirmed
Whether the 2014 check creates a material factual dispute about CHP-98’s existence	McCourt: the reissued check proves a continued distribution from the partnership after filing	Defendants: the check was issued by CRI (not CHP-98) and was a reissue of unpaid 2012 checks—does not show partnership existence in 2013	Held: The check did not create a genuine issue of material fact because it does not show CHP-98 issued funds or remained in existence at the relevant time

West v. General Motors Corp., 469 Mich 177 (de novo review of summary disposition) (standards for reviewing motions for summary disposition)
Maiden v. Rozwood, 461 Mich 109 (summary disposition (C)(10) tests factual sufficiency; court considers evidentiary materials in light most favorable to nonmoving party)
Quinto v. Cross & Peters Co., 451 Mich 358 (moving party’s initial burden to support (C)(10) motion with documentary evidence; then burden shifts to opposing party)