C-SPINE ORTHOPEDICS, PLLC v. PROGRESSIVE MICHIGAN INSURANCE COMPANY
No. 358170; No. 358171
STATE OF MICHIGAN COURT OF APPEALS
December 8, 2022
FOR PUBLICATION
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
C-SPINE ORTHOPEDICS, PLLC, Plaintiff-Appellant, v PROGRESSIVE MICHIGAN INSURANCE COMPANY, Defendant-Appellee.
No. 358170
C-SPINE ORTHOPEDICS, PLLC, Plaintiff-Appellant, v PROGRESSIVE MICHIGAN INSURANCE COMPANY, Defendant-Appellee.
No. 358171 Macomb Circuit Court LC No. 2020-000386-NF
Before: GLEICHER, C.J., and MARKEY and PATEL, JJ.
MARKEY, J. (dissenting).
In these consolidated appeals, plaintiff, C-Spine Orthopedics, PLLC (C-Spine), appeals by right the trial court‘s orders granting summary disposition in favor of defendant, Progressive Michigan Insurance Company (Progressive), in both cases. The suits involve C-Spine‘s efforts to collect personal protection insurance (PIP) benefits under the no-fault act,
I. FACTUAL AND PROCEDURAL HISTORY
As acknowledged by the majority, there are “messy” factual aspects of this case. I believe it appropriate to delve into those facts, because they are relevant to the proper analysis of the issues on appeal. Moreover, these messy facts reveal questionable transactions and form the basis of some wholly meritless and disingenuous appellate arguments by C-Spine.
On May 23, 2018, Jose Cruz-Muniz and Sandra Cruz were injured in a motor vehicle accident.1 C-Spine provided medical products, services, and accommodations to both Jose and Sandra in relation to their injuries arising from the accident. Progressive was the no-fault insurer responsible for paying PIP benefits with respect to their care and treatment. According to the complaints filed in this case and the attachments to the complaints, Sandra received medical services from C-Spine starting on August 7, 2019, and lasting through December 18, 2019. Sandra‘s total account balance for C-Spine‘s treatment and care during that period was $249,258.38. Jose received medical services from C-Spine starting on August 7, 2019, and lasting through October 2, 2019. And Jose‘s total account balance for C-Spine‘s treatment and care during that period was $37,667.36.
There is no dispute that Sandra and Jose executed multiple assignments of benefits, authorizing C-Spine to directly seek payment of PIP benefits from Progressive and giving C-Spine the power to pursue and settle claims. This case involves numerous agreements between C-Spine and third-party factoring companies.2 Those factoring companies included: Well States Healthcare, LLC (Well States); MedFinance Servicing, LLC (MedFinance); Apogee Capital Fund
The numerous agreements between C-Spine and the factoring companies that are relevant to these appeals are somewhat difficult to navigate and understand because of issues concerning confidentiality and privacy, especially in connection with the Health Insurance Portability and Accountability Act (HIPPA),
First, there were bulk purchase and sales agreements between C-Spine and the factoring companies (hereafter “purchase” or “factoring” agreements), pursuant to which C-Spine sold, transferred, assigned, and conveyed its rights, title, and interests in accounts receivable to the factoring companies. No actual purchase agreements concerning Jose‘s and Sandra‘s accounts receivable are included in the lower court record. C-Spine did produce a purchase agreement that is contained in the record, but it is dated August 2, 2019, which was before Jose or Sandra began receiving medical services. Progressive describes it as a “sample” purchase agreement, and e-mail correspondence to Progressive‘s counsel indicated or suggested that all of the actual pertinent factoring agreements had “the exact same contractual language” as the August 2, 2019 purchase agreement. Counter-assignments, purchase-agreement amendments, and schedules of accounts, which I shall discuss below, also referred to underlying purchase agreements.
Second, the record contains some schedules of accounts. The purchase agreements referenced attached schedules of accounts, identifying them as Exhibit A to the agreements. These heavily-redacted schedules of accounts blocked out information about C-Spine patients other than Jose and Sandra. The schedules do show the dates of medical service, the associated charges on those dates, and the discounted amount paid by the factoring companies to C-Spine in regard to those charges. To be clear, because no directly pertinent purchase or factoring agreements are part of the record, the schedules of accounts are not connected to any particular purchase agreements.3 Rather, C-Spine essentially supplied Progressive with schedules of accounts grouped together that broadly covered all of the numerous purchase agreements that were entered into by C-Spine and the factoring companies.
Third, the record contains several counter-assignments reflecting that C-Spine, under various purchase agreements, had previously sold, transferred, assigned, and conveyed its legal and equitable rights, title, and interests in Jose‘s or Sandra‘s accounts receivable to particular factoring companies. The counter-assignments anticipated the need to file suit against the insurer to obtain payment and stated that the best method to do so would be for C-Spine to pursue the action. The counter-assignments thus provided that the factoring companies were now transferring, assigning, and conveying the rights, title, and interests they had previously acquired from C-Spine back to C-Spine relative to medical services provided to Sandra and
Fourth, and finally, the record contains amendments to two Apogee purchase agreements. The amendments acknowledged prior purchase agreements in which Apogee had obtained accounts receivable from C-Spine. The amendments appointed C-Spine as the “servicer” of the accounts receivable consistent with a capacity to litigate and compromise the accounts receivable.
I now move on to the specifics or details regarding Jose‘s and Sandra‘s accounts receivable. The record regarding Jose‘s accounts receivable and related transactions is much clearer than the record concerning Sandra‘s accounts receivable. Jose received medical services from C-Spine on August 7 and 15, 2019, and was charged $620.46 and $9,651.36, respectively.4 On August 16 and 30, 2019, C-Spine conveyed accounts receivable to Apogee under purchase agreements, which, in part, encompassed the services provided to Jose on August 7 and 15, 2019. Jose then received medical services from C-Spine on August 21, 2019 ($15,165.34), September 12, 2019 ($5,944.31), September 25, 2019 ($5,864.31), and October 2, 2019 ($421.58). MedFinance acquired all of these accounts receivable pursuant to purchase agreements with C-Spine. By document dated May 4, 2020, C-Spine and MedFinance entered into a counter-assignment of accounts receivable relative to Jose. The counter-assignment indicated that C-Spine had previously sold, transferred, assigned, and conveyed to MedFinance its legal and equitable rights, title, and interests in medical services provided to Jose between August 21 and October 2, 2019. The counter-assignment stated that MedFinance was now transferring, assigning, and conveying the rights, title, and interests it had previously acquired from C-Spine back to C-Spine in regard to accounts receivable associated with medical services provided to Jose. The counter-assignment included the right to pursue and settle lawsuits.
On May 11, 2020, C-Spine filed a two-count complaint against Progressive with respect to services provided to Jose. In the complaint, C-Spine maintained that Progressive had unreasonably refused to make payment for the medical products, services, and accommodations provided to Jose. C-Spine contended that as Jose‘s assignee, it was the real party in interest and had a right to prosecute the action under
Sandra‘s accounts receivable are more complex and the transactional documents
As gleaned by e-mails and schedules of accounts supplied by C-Spine to Progressive during discovery, along with documentary references in counter-assignments, Sandra‘s accounts receivable starting with medical services provided on August 21, 2019, and running through November 19, 2019, were apparently all transferred, sold, assigned, and conveyed to either MedFinance, EzMed, or MMD.6 But, as discussed below, I am not entirely confident of this factual conclusion.
By document dated January 15, 2020, C-Spine and EzMed entered into a counter-assignment of accounts receivable relative to Sandra. The counter-assignment indicated that C-Spine had previously sold, transferred, assigned, and conveyed to EzMed its legal and equitable rights, title, and interests in medical services provided to Sandra. The counter-assignment stated that EzMed was now transferring, assigning, and conveying the rights, title, and interests it had previously acquired from C-Spine back to C-Spine with respect to accounts receivable associated with medical services provided to Sandra. The counter-assignment included the right to pursue and settle lawsuits. By document also dated January 15, 2020, C-Spine and MMD entered into a nearly-identical counter-assignment of accounts receivable relative to Sandra. And by document dated January 11, 2021, C-Spine and MedFinance also entered into a similar counter-assignment of accounts receivable with regard to Sandra‘s medical services.
I note that given some ambiguous language in these counter-assignments, it is difficult to connect each counter-assignment to particular dates in 2019 when Sandra received medical services from C-Spine. The MMD counter-assignment pretty clearly spelled out that MMD had purchased Sandra‘s accounts receivable related to medical services provided to her on November 19, 2019, and that the counter-assignment covered that transaction. The EzMed counter-assignment either pertained to medical services provided “between October 9, 2019 and November 15, 2019[,]” or to EzMed‘s purchases of Sandra‘s
On January 29, 2020, C-Spine filed a two-count complaint against Progressive with respect to services provided to Sandra. In the complaint, C-Spine maintained that Progressive had unreasonably refused to make payment for the medical products, services, and accommodations provided to Sandra. C-Spine contended that as Sandra‘s assignee, it was the real party in interest and had a right to prosecute the action under
On January 19, 2021, Progressive moved for summary disposition under
The trial court denied Progressive‘s motions for summary disposition in extensive written opinions and orders that paralleled each other. The court first determined that even though Jose and Sandra had assigned their rights to C-Spine with respect to collecting insurance benefits from Progressive, C-Spine turned around and “sold or assigned its rights in the accounts to the factoring companies.” The trial court rejected C-Spine‘s contention that the transactions between C-Spine and the factoring companies merely involved loans or grants of a security interest in exchange for capital. The court concluded that under the plain and unambiguous language of the purchase or factoring agreements, the factoring companies became the owners and real parties in interest in regard to the accounts receivable. But the trial court then acknowledged the various counter-assignments, finding that the counter-assignments had re-conferred an ownership interest in the accounts receivable to C-Spine, such that C-Spine again became the real party in interest and had standing to file suit.7 The trial court additionally opined that enforcement of the counter-assignments did not result in C-Spine‘s engagement in the unauthorized practice of law on behalf of the factoring companies. Rather, C-Spine had reacquired a full ownership interest in the accounts receivable, leaving the factoring companies with no interest in the accounts. Accordingly, there could be no representative acts by C-Spine in furtherance of interests held by the factoring companies.
Approximately five months later, in June 2021, Progressive moved for summary disposition once again under
In response to the summary disposition motions, C-Spine took the position that while the counter-assignments were indeed executed after the complaints were filed, C-Spine and the factoring companies had “specified the effective dates” as indicated on the face of the counter-assignments. C-Spine further insisted “that the counter-assignments convey standing to [C-Spine] regardless of the date they were signed.” C-Spine also supplied affidavits in support of a claim that C-Spine retained the exclusive right to sue on the outstanding accounts receivable.8 C-Spine asserted that it was and had always been the real party in interest. According to C-Spine, the factoring companies assigned any rights that they had acquired from C-Spine in relation to the pertinent accounts receivable back to C-Spine, effective on the dates listed in the counter-assignments. C-Spine additionally argued that should the trial court decide that C-Spine did not have standing when the complaints were filed, the proper remedy was joinder of the factoring companies under
In a reply brief, Progressive contended that C-Spine did not acquire rights or interests from the factoring companies until execution of the counter-assignments and amendments to the purchase agreements, regardless of the so-called selected effective date. Progressive further argued that standing is determined at the time a suit is filed, that a standing deficiency cannot be cured retroactively, and that the joinder rules had no application under the circumstances presented.
At a joint hearing on the motions for summary disposition held on July 26, 2021, the trial court entertained brief oral arguments by the parties and then ruled in extremely cursory fashion that C-Spine lacked standing at the time that the complaints were filed. The court noted that “[i]t was done retroactively after.” The trial court granted the two motions for
II. ANALYSIS
C-Spine presents six specific arguments on appeal. Those arguments are identical in both cases.
A. STANDARD OF REVIEW
“Whether a party has standing is a question of law that is reviewed de novo.” Mich Ass‘n of Home Builders v Troy, 504 Mich 204, 212; 934 NW2d 713 (2019). “Further, the issue of whether a plaintiff is the real party in interest is a question of law that we review de novo.” Cannon Twp v Rockford Pub Sch, 311 Mich App 403, 411; 875 NW2d 242 (2015).
B. ARGUMENT CONCERNING MCR 2.116(C)(5)
C-Spine initially argues that
C. EVIDENCE OF TRANSFER OF INTERESTS BY C-SPINE TO FACTORING COMPANIES
C-Spine argues that there was a complete lack of documentary evidence demonstrating that C-Spine transferred any interests in accounts receivable to the factoring companies. C-Spine initially notes that all of the dates of service were subsequent to the June 11, 2019 effective date of the sweeping amendments to the no-fault act,
C-Spine specifically contends that there was no record evidence related to any transfer by C-Spine of interests in accounts receivable to MedFinance/Well States, considering that the purchase agreement executed by MedFinance/Well States involved a conveyance by Sea Spine Orthopedic, LLC, not C-Spine. This is a reference to the sample purchase agreement dated August 2, 2019, which reflected a conveyance of accounts receivable by Sea Spine Orthopedic to MedFinanace/Well States. The sample agreement was executed before Sandra and Jose even started treatment with C-Spine. There is no indication that this purchase agreement actually transferred any of the accounts receivable at issue in these cases. Rather, the purchase agreement was provided to Progressive as evidence revealing the general language used in all of the purchase agreements employed by C-Spine and the factoring companies with respect to the conveyances of Jose‘s and Sandra‘s accounts receivable. I note that attached to Progressive‘s appellate briefs is a ratification agreement dated November 8, 2019, which indicates that earlier purchase agreements between Sea Spine and MedFinance/Well States were intended to bind C-Spine and not Sea
Spine.11 But the ratification agreement was not presented to the trial court as part of the summary disposition proceedings.12 Nevertheless, C-Spine‘s
C-Spine further argues that the sales of accounts receivable to Apogee, EzMed, and MMD were not established as a matter of law because no purchase agreements were included in the record and therefore the purported transactions effectively remained a “mystery.” C-Spine contends that the mere reference to those purchase agreements in other documents constitutes inadequate proof of the purchase agreements. Consequently, according to C-Spine, “it is legally impossible to determine who owns the cause of action.” I find this argument to also be disingenuous. C-Spine provided a sample purchase agreement and schedules of accounts depicting the accounts receivable relative to Jose and Sandra that were conveyed to the factoring companies. The e-mail correspondence to Progressive that provided the schedules of accounts stated: “I put them in list form—which factoring companies are involved with the patient accounts.” Moreover, C-Spine relied on and had executed counter-assignments and purchase-agreement amendments, which are part of the record, that expressly referred to the purchase agreements. The counter-assignments and amendments would make absolutely no sense absent the existence of underlying transactions between C-Spine and the factoring companies.
Furthermore, C-Spine does not specifically claim that the purchase agreements do not exist. In fact, in response to Progressive‘s motions for summary disposition, C-Spine did not deny the existence of the agreements; rather, it characterized the agreements as concerning loans and not sales. If not waived outright, the argument that there was no documentary proof of the transactions was certainly not preserved.13 Regardless, there was uncontroverted evidence establishing that C-
Michigan generally follows the “raise or waive” rule of appellate review. Under our jurisprudence, a litigant must preserve an issue for appellate review by raising it in the trial court. Although this Court has inherent power to review an issue not raised in the trial court to prevent a miscarriage of justice, generally a failure to timely raise an issue waives review of that issue on appeal.
Spine entered into purchase agreements with the factoring companies, even though the agreements themselves are not part of the record.
D. ASSIGNMENT OF BENEFITS PAYABLE IN THE FUTURE
I initially note that C-Spine attaches as an exhibit to its briefs on appeal the August 2, 2019 purchase agreement, followed immediately by schedules of accounts, making it look like the schedules were incorporated exhibits attached to the August 2, 2019 purchase agreement. Once again, the August 2, 2019 purchase agreement was executed before Jose and Sandra were even C-Spine patients—it was a sample agreement. Moreover, the schedules of accounts referenced specific dates of service that necessarily had already taken place. It would require clairvoyance for the August 2, 2019 purchase agreement to have covered accounts receivable for future medical services that already had particular dates associated with the services. I would hold that the record, as a matter of law, does not support the conclusion that C-Spine assigned any rights to future accounts receivable to any of the factoring companies.
E. JOINT PARTIES IN INTEREST
On this preserved issue, C-Spine argues that assignors and assignees are both real parties in interest after rights have been assigned; therefore, the factoring companies and C-Spine were parties in interest for purposes of the litigation. C-Spine, citing
The principal rationale for the rule is based in the nature of the adversarial process and judicial efficiency. By limiting appellate review to those issues raised and argued in the trial court, and holding all other issues waived, appellate courts require litigants to raise and frame their arguments at a time when their opponents may respond to them factually. This practice also avoids the untenable result of permitting an unsuccessful litigant to prevail by avoiding its tactical decisions that proved unsuccessful. Generally, a party may not remain silent in the trial court, only to prevail on an issue that was not called to the trial court‘s attention. Trial courts are not the research assistants of the litigants; the parties have a duty to fully present their legal arguments to the court for its resolution of their dispute. [Citations omitted.]
“even if the trial court had been correct that [C-Spine] effectively transferred its rights to the benefits at issue, the appropriate remedy is merely to join any other entity that supposedly or allegedly has a duplicative interest in the cause of action.” C-Spine maintains that Progressive‘s sole legitimate interest was avoidance of duplicate payment and that joinder would have protected that interest. C-Spine asserts that the reason for the “real party in interest” requirement is to prevent double recovery and multiple lawsuits. C-Spine claims that the only relief available to Progressive was joinder of the factoring companies, not dismissal of the lawsuit. But then C-Spine also argues:
In this case, joinder is unnecessary and ultimately inappropriate for any factoring company, given the instruction above that joinder is only necessary where a judgment would not serve as a complete adjudication of the issues asserted or possibly asserted against a defendant. Here, all purported transfers of PIP benefits were executed more than a year ago. To the extent that the factoring companies ever had any interest, it has since extinguished pursuant to
MCL 500.3145 .14
Subject to certain circumstances, “[a]n action must be prosecuted in the name of the real party in interest . . . .”
A real party in interest is the one who is vested with the right of action on a given claim, although the beneficial interest may be in another. This standing doctrine recognizes that litigation should be begun only by a party having an interest that will assure sincere and vigorous advocacy. In addition, the doctrine protects a defendant from multiple lawsuits for the same cause of action. A defendant is not harmed provided the final judgment is a full, final, and conclusive adjudication of the rights in controversy that may be pleaded to bar any further suit instituted by any other party. [Quotation marks and citations omitted.]
An assignee of a cause of action becomes the real party in interest in relation to that particular cause of action, considering that the assignment vests in the assignee all the rights earlier held by the assignor. Kearns v Mich Iron & Coke Co, 340 Mich 577, 582-584; 66 NW2d 230 (1954); Cannon Twp, 311 Mich App at 412-413; Burkhardt v Bailey, 260 Mich App 636, 653; 680 NW2d 453 (2004). This caselaw does not support C-Spine‘s contention that an assignor remains a real party in interest after an assignment. Indeed, assignments divest assignors of any interest in the subject matter of the assignments. See Ward v DAIIE, 115 Mich App 30, 37; 320 NW2d 280 (1982); Moore v Baugh, 106 Mich App 815, 819; 308 NW2d 698 (1981); 6A CJS, Assignments, § 88. Critical to the proper analysis of these lawsuits, caselaw provides that standing is determined at the time a complaint is filed. League of Women Voters of Mich v Secretary of State, 506 Mich 561, 595 n 54; 957 NW2d 731 (2020); Girard v Wagenmaker, 437 Mich 231, 244; 470 NW2d 372 (1991). And C-Spine and my colleagues in the majority do not argue to the contrary.
In support of its position that assignors and assignees remain real parties in interest after an assignment, C-Spine cites and quotes
Every action shall be prosecuted in the name of the real party in interest; but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action was brought . . . . [Emphasis added.]
The emphasized language is the language that C-Spine emphasizes when making its argument. Similarly,
(B) An action must be prosecuted in the name of the real party in interest, subject to the following provisions:
(1) A personal representative, guardian, conservator, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a person authorized by statute may sue in his or her own name without joining the party for whose benefit the action is brought.
With respect to contracts made for the benefit of another, this is plainly a reference to contracts with third-party beneficiaries, allowing a contracting party who does not receive a direct benefit to file suit if the other contracting party‘s promise directed at the third-party beneficiary is not fulfilled. See Capital Mtg Corp v Mich Basic Prop Ins Ass‘n, 78 Mich App 570, 575; 261 NW2d 5 (1977) (“[A] party in whose name a contract has been made for the benefit of another may sue in his own name without joining the other party“). The purchase agreements or assignments
With respect to a party being authorized by statute to sue for the benefit of another,
In Lansing Sch Ed Ass‘n, MEA/NEA v Lansing Bd of Ed, 487 Mich 349, 372; 792 NW2d 686 (2010), our Supreme Court, overruling several of its earlier opinions, enunciated the principles of standing in Michigan going forward:
We hold that Michigan standing jurisprudence should be restored to a limited, prudential doctrine that is consistent with Michigan‘s long-standing historical approach to standing. Under this approach, a litigant has standing whenever there is a legal cause of action. Further, whenever a litigant meets the requirements of
MCR 2.605 , it is sufficient to establish standing to seek a declaratory judgment. Where a cause of action is not provided at law, then a court should, in its discretion, determine whether a litigant has standing. A litigant may have standing in this context if the litigant has a special injury or right, or substantial interest, that will be detrimentally affected in a manner different from the citizenry at large or if the statutory scheme implies that the Legislature intended to confer standing on the litigant.
While C-Spine had a statutory legal cause of action under
The majority addresses the real-party-in-interest provision in
C-Spine is authorized by statute to bring a first-party no-fault claim, and the plain language of the court rule permits it to do so despite that the action was brought for the benefit of the factoring companies, or for the joint benefit of C-Spine and the factoring companies.
[C-Spine] is “vested with the right of action” against Progressive based on the assignments from the Cruzes, and is “authorized by statute” to sue in its own name under the plain language of MCL 500.3112 . That the “beneficial interest” resided with the factoring companies did not eliminate C-Spine as a real party in interest.
In my view, this analysis ignores the fact that C-Spine assigned or sold all of its rights and interests in PIP benefits to the factoring companies before the suits were filed, thereby losing its status as a real party in interest under the authorities cited earlier. The factoring companies became the real parties in interest at that point, although there might have been legal impediments to them filing suit against Progressive.
I additionally believe that the majority‘s position reflects a misunderstanding of
authorize a party to sue for the benefit of another person. Again, in its complaints, C-Spine did not allege a cause of action or standing under
Next,
If there is a change or transfer of interest, the action may be continued by or against the original party in his or her original capacity, unless the court, on motion supported by affidavit, directs that the person to whom the interest is transferred be substituted for or joined with the original party, or directs that the original party be made a party in another capacity. Notice must be given as provided in subrule (A)(1)(c).
In these cases, it appears and the parties accept that C-Spine transferred its rights and interests in the accounts receivable to the factoring companies before the complaints were filed and not while the suits were ongoing or continuing. Although the counter-assignments and amendments to the purchase agreements were executed after the complaints were filed, this would provide a basis to join or substitute
Although C-Spine does not raise an argument under
joined with the factoring companies, but C-Spine would have no interest whatsoever such that it would be entitled to stay in the suit.
The majority concludes that Cannon Twp, 311 Mich App 403, supports its position. In that case, the township plaintiff did not suffer any damages or have to pay any monies itself, but it was assigned causes of action against the defendant school system by two other nonparties, with one assignment occurring before the township filed suit and one occurring after the township filed suit. Id. at 412. With respect to the post-complaint assignment, “the trial court granted the township leave to amend its complaint to properly reflect that it was litigating as the assignee of both [nonparties,]” and this Court found no error “in the trial court‘s grant of leave to amend.” Id. at 412-413. In this case, C-Spine did not request leave to amend its complaints to reflect that it was litigating against Progressive on the basis of the counter-assignments and the amended purchase agreements. The Cannon Twp panel also found that with regard to the nonparty who assigned a cause of action to the township before the lawsuit was filed, the township could still be considered a real party in interest even though the township was seeking to collect a judgment for the nonparty‘s benefit. Id. at 413. This reasoning does not support C-Spine‘s position. The township was an assignee of a cause of action before and after it filed its complaint. Here, C-Spine sold its interests and rights to collect PIP benefits before filing the suits.
In sum, I would hold that there is no authority for the proposition that the appropriate remedy for the issues raised by Progressive in its motions for summary disposition was to deny the motions and to order joinder of the factoring companies. Joinder would not have magically transformed C-Spine into a real party in interest.
F. TRANSFER OF ACCOUNTS RECEIVABLE AND MAINTENANCE OF A CAUSE OF ACTION
C-Spine argues that to the extent that it transferred rights to a factoring company,
I find it telling that C-Spine does not refer to any language in the standard purchase agreement. The purchase agreements, by way of sample, provided that C-Spine was selling, transferring, assigning, and conveying to the factoring companies its legal and equitable “[r]ights, [t]itle, and [i]nterests in the [a]ccounts [r]eceivable.” This all-encompassing language plainly and unambiguously covered and conveyed a right of action to recover payment on an account receivable.15 And any doubt on the issue is put to rest by additional language in the purchase
The cardinal rule in the interpretation of contracts is to ascertain the intention of the parties; to this rule all others are subordinate. In ascertaining the
agreements regarding servicing, which provides that C-Spine “shall not settle, solicit, or accept collections on any of the [a]ccounts [r]eceivable.” Therefore, I conclude that C-Spine‘s argument fails.
Progressive presents an argument under the Uniform Commercial Code (UCC) - Secured Transactions,
G. VESTING C-SPINE WITH CAUSES OF ACTION
C-Spine begins its final argument by noting that Michigan law provides that no contract exists unless there is a meeting of minds between the parties to the purported
With respect to contract formation, “[a] meeting of the minds is judged by an objective standard, looking to the express words used by the parties and their visible actions, not the parties’
meaning of a contract, we give the words used in the contract their plain and ordinary meaning that would be apparent to a reader of the instrument. Unless a contract provision violates law or one of the traditional defenses to the enforceability of a contract applies, a court must construe and apply unambiguous contract provisions as written. If the language of a contract is ambiguous, testimony may be taken to explain the ambiguity. [Quotation marks, citations, and brackets omitted.]
subjective states of mind.” Kloian v Domino‘s Pizza, LLC, 273 Mich App 449, 454; 733 NW2d 766 (2006) (quotation marks and citations omitted). Additionally, parol or extrinsic evidence is not admissible to vary a contract that is clear and unambiguous. Meagher v Wayne State Univ, 222 Mich App 700, 722; 565 NW2d 401 (1997). Here, the affidavits cannot be used to undermine or circumvent the plain and unambiguous language of the purchase agreements; there was a meeting of the minds consistent with the clearly expressed language of the agreements. And the executives’ subjective states of mind as revealed in their affidavits were irrelevant. The purchase agreements conveyed the right to sue on the accounts receivable covered by the agreements.
C-Spine also argues that Progressive, as a non-party to the purchase agreements, lacked standing to challenge the agreements. This argument lacks merit. Progressive was not suing anyone and did not challenge the agreements. Progressive merely argued that C-Spine lacked standing in light of the purchase agreements. I conclude that C-Spine‘s argument fails.
III. CONCLUSION
I would affirm the trial court‘s rulings granting summary disposition in favor of Progressive.16 C-Spine has not presented any persuasive arguments on appeal. Instead, its arguments, for the most part, are cursory and undeveloped.
I respectfully dissent.
/s/ Jane E. Markey
Under the plain and unambiguous language of the sales agreement, it is clear that plaintiff assigned all of its rights in the accounts receivable to the servicing companies. The assignments divested plaintiff of any ownership interest in the accounts. Therefore, the trial court erred when it denied defendant‘s motion for summary disposition because there is no genuine issue of material fact that plaintiff lacked standing and was not the real party in interest related to the account receivable for Steen because plaintiff had assigned its rights to such to the servicing companies before it filed suit against defendant.