Jay S Turner v. J & J Slavik Inc

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 JAY S. TURNER, FOR PUBLICATION June 12, 2026 Plaintiff/Counterdefendant- 1:34 PM Appellant/Cross-Appellee, v No. 370564 Oakland Circuit Court J & J SLAVIK, INC., and J. RONALD SLAVIK, LC No. 2019-175801-CB Defendants/Counterplaintiffs- Appellees/Cross-Appellants. Before: BAZZI, P.J., and RICK and MALDONADO, JJ. BAZZI, P.J. In this minority shareholder oppression action, plaintiff/counterdefendant-appellant/cross- appellee, Jay S. Turner (plaintiff), appeals as of right, and defendants/counterplaintiffs- appellees/cross-appellants, J & J Slavik, Inc. (J & J), and J. Ronald Slavik (Slavik) (collectively, defendants), cross-appeal, the trial court’s March 28, 2024 judgment issued in plaintiff’s favor, and the trial court’s August 23, 2024 opinion and amended judgment partially granting defendants’ renewed motion for relief from judgment. We affirm. I. BASIC FACTS AND PROCEDURAL HISTORY As eloquently stated by the trial court, “This matter is more than two decades old and rivals Charles Dickins’[s] epic depiction of the fruitless travails of endless litigation.” This case arises out of plaintiff’s efforts to redeem his common stock in J & J pursuant to a July 12, 1989 stock restriction and redemption agreement (redemption agreement), which mandated that plaintiff sell, and J & J purchase, plaintiff’s common stock at fair market value as of the last day of the year preceding the date of his termination as the chief executive officer (CEO) of J & J—December 31, 1991. Plaintiff initially purchased his J & J stock for $25,000 in cash, together with the relinquishment of an option related to his prior company valued at $400,000. Following plaintiff’s termination from J & J, neither plaintiff nor defendants attempted to redeem plaintiff’s stock in accordance with the procedures in the redemption agreement, and defendants refused to provide plaintiff with financial information regarding J & J under the belief plaintiff was no longer a -1- shareholder and J & J was insolvent. The subsequent litigation resulted in this Court issuing two opinions regarding defendants’ alleged violations of the Business Corporation Act (BCA), MCL 450.1101 et seq. In 2012, this Court held that the trial court erred when it determined plaintiff’s claims that he was a shareholder were barred by the residual six-year statute of limitations found in MCL 600.5813. Turner v J & J Slavik, Inc, unpublished per curiam opinion of the Court of Appeals, issued May 10, 2012 (Docket No. 303243), p 1 (Turner I). This Court resolved, “Although plaintiff is barred from obtaining substantive relief for any past violations, he may be able to obtain injunctive relief to prevent future violations if the trial court determines that he is still a shareholder.” Id. at 2. In a subsequent 2014 appeal, this Court reversed the trial court’s opinion and order entering a judgment of no cause against plaintiff because the trial court improperly ruled that plaintiff was not a shareholder of J & J. Turner v J & J Slavik, Inc, unpublished per curiam opinion of the Court of Appeals, issued April 15, 2014 (Docket No. 313936), p 1 (Turner II). This Court recognized J & J’s contention that plaintiff was not entitled to a redemption of his stock due to its purported negative value, but it opined, “If [J & J] is correct that plaintiff’s shares had no value when his employment was terminated, [J & J] was still bound by the stock restriction and redemption agreement to establish that it was insolvent as of December 31, 1991, which it made no attempt to do.” Id. at 2. This Court further stated, “Because a valuation that conformed to the terms of the redemption agreement was not performed, there was no evidence, that the parties agreed in advance to recognize, that plaintiff’s shares were, in fact, worthless.” Id. at 4. This Court ultimately concluded, “Because the redemption procedure bargained for by the parties was not followed, plaintiff’s stock was not canceled, and plaintiff did not lose his status as a shareholder.” Id. Following the issuance of these opinions, the present “litigation war of attrition ensued,” as a result of defendants’ continued refusal to provide plaintiff with any information concerning J & J’s financial status, its operations, or the holding of shareholder meetings. Accordingly, on August 12, 2019, plaintiff filed a complaint in the instant proceedings, alleging various violations of the BCA. The trial court ultimately conducted a combined jury and bench trial. The jury considered plaintiff’s breach of fiduciary duty claim against Slavik, while the court adjudicated plaintiff’s minority shareholder oppression claim and the remaining purported breaches of the BCA against defendants. During the jury trial, the trial court granted defendants’ motion for a directed verdict regarding the breach of fiduciary duty claim against Slavik, finding that defendants’ spoliation of pertinent financial documents bearing on J & J’s value made it impossible to determine damages. Following a bench trial regarding plaintiff’s remaining BCA claims, the trial court issued an opinion, judgment, and order on January 3, 2024, providing: For the reasons stated below, I find that Defendants engaged in minority shareholder oppression and intentionally refused to assess and pay [plaintiff] the fair market value of J & J’s stock as of December 31, 1991. Moreover, Defendants not only prevented [plaintiff] from receiving financial documents from which he could make such an assessment in 1992, they failed to recognize his status as a shareholder and accord him the rights secured by J & J’s Bylaws and the [BCA]. In the course of this conduct, and in furtherance of it, Defendants engaged in spoliation of evidence. -2- Regarding defendants’ alleged failure to send financial documents to plaintiff in violation of the BCA, the court resolved, “Defendants have violated the []BCA, specifically MCL 450.1487(1), by refusing to provide [plaintiff] with the requested financial statements over a long course of time.” Addressing defendants’ purported refusal to allow plaintiff to review J & J corporate records, the trial court held that defendants breached the BCA, specifically MCL 450.1487(2) and (6), by declining plaintiff’s proper request to examine J & J’s business records to determine the value of his shares. The trial court further ruled that plaintiff established, by a preponderance of the evidence, his minority shareholder claim against defendants individually and severally as: Defendants have persisted in willfully unfair and oppressive conduct against [plaintiff] by: (1) refusing to provide [plaintiff] with access to the corporate books and records of J & J, (2) failing to have fair market appraisals conducted on J & J’s assets and refusing to buy out [plaintiff’s] ownership interest in J & J as required by the Redemption Agreement, (3) refusing to recognize [plaintiff’s] continuing ownership interest in J & J after he was terminated, and (4) manipulating or hiding the finances of J & J to benefit Ron Slavik and the Slavik family interests. These are continuing violations. Concerning defendants’ spoliation of the evidence, the court stated, “I have found that the Defendants have failed to produce and permitted to be destroyed the financial and business records of J & J—evidence J & J presumably relied upon in May of 1992 to assert that the company was insolvent and under no obligation to redeem [plaintiff’s] stock.” The trial court noted, “This conclusion supports using adverse inferences about the actual financial status of J & J in 1991.” As to the proper remedy for minority shareholder oppression, the court opined, “The equitable remedy most relevant here is requiring Defendants to purchase [plaintiff’s] shares to address defendants’ failure to do so in 1992 as their Redemption Agreement required and for failing to respect his shareholder rights.” However, the trial court recognized that there were “two difficult problems with this case,” which encompassed the extensive evidence that J & J was in “dire financial trouble” as of December 31, 1991, which was the relevant date for determining the fair market value of plaintiff’s stock, and that “the record [was] devoid of actual financial data on what was the market value of J & J’s assets on the Valuation Date—an evidentiary gap that is entirely attributable to J & J’s refusal to provide that data (and its destruction).” The court further noted that it dismissed plaintiff’s breach of fiduciary duty claim “precisely because this evidentiary gap made it impossible for a jury to determine damages without engaging in speculation.” But the trial court resolved because this was an equitable action, it had greater discretion to fashion an appropriate remedy pursuant to MCL 450.1489. The court advanced that because it “concluded that Defendants consciously engaged in a scheme designed to make it impossible to establish the fair market value of J & J’s assets as of December 31, 1991,” it relied on adverse inferences to determine that J & J was not insolvent on the valuation date, defendants were responsible for refusing to redeem plaintiff’s stock and providing plaintiff with financial data to conduct his own valuation assessment, and defendants “eventually destroyed all of the financial data from which a fair market valuation could have been made after the fact.” The trial court ultimately determined: -3-  MCL 450.1489 provides me with broad equitable power to fashion a remedy. I conclude that [plaintiff] should not bear the entire risk of loss because of the Defendants’ actions. However, in fashioning a remedy I am mindful that there is substantial credible evidence that J & J was in perilous financial condition in 1991. I believe that [plaintiff’s] demand that he be awarded $425,000.00—the full amount of his claimed common stock investment—ignores the evidence concerning J & J[’s] financial plight. Accordingly, I award [plaintiff] $25,000—the amount he actually paid in cash for his common shares (and one that might have been within the capacity of Defendants to pay in 1992), plus interest on that amount running from May 1992— that month being the one in which Defendants formally refused to honor its Redemption Agreement. The court additionally ruled that plaintiff’s minority shareholder oppression claim was not barred by the statute of limitations because the three-year statute of limitations provided under MCL 450.1489(f) was solely applicable to actions for money damages. Further, there was “no statute of limitations contained in MCL 450.1489(e), which [] allows a court to order the purchase at fair value of the shares of a corporation from the oppressed shareholder,” and this statute served as the basis for the restitution award. The court clarified that a judgment would be entered against defendants, jointly and severally, regarding the minority shareholder oppression claim, and defendants were ordered to redeem plaintiff’s stock and compensate plaintiff $25,000, plus interest from May 19921 to the present, in an amount to be determined by the trial court. Defendants were additionally ordered to reimburse plaintiff for his reasonable costs and attorney fees related to the pursuit of the minority shareholder oppression claim. On March 11, 2024, pursuant to the parties’ filings regarding interest, attorney fees and costs, and the viability of plaintiff’s minority shareholder oppression claim, the trial court issued an opinion and order granting in part and denying in part defendants’ motion for relief from judgment. The court addressed whether an award of attorney fees and costs was permissible for plaintiff’s minority shareholder oppression claim, stating that defendants “correctly note that MCL 450.1489 does not provide for the award of attorney’s fees and costs,” and while plaintiff argues that attorney fees and costs are proper against a party who has engaged in “unlawful or fraudulent conduct,” plaintiff “exaggerates this Court’s findings and characterization of the Defendants’ behavior.” The trial court further opined that “in the face of the American Rule, this Court is not persuaded that equity demands the award of attorney’s fees,” and attorney fees “are only available under limited circumstances and upon review of the record no such basis exists to grant attorney’s fees.” Therefore, defendants’ motion for relief as to the attorney fees and costs related to the minority shareholder oppression claim was granted. 1 The trial court determined that a letter sent from Slavik to plaintiff on May 21, 1992, stating that defendants would not redeem plaintiff’s stock represented defendants’ “formal” denial of the underlying redemption agreement, and thus the pertinent date to issue interest to determine the fair value of plaintiff’s shares. -4-  The trial court denied the remainder of defendants’ motion for relief from judgment stating that defendants incorrectly asserted that the contested January 2024 opinion, judgment, and order awarded “money damages,” and relied on “the now unsanctioned ‘continuing wrong’ doctrine in order to avoid the relevant statute of limitations that would have precluded any recovery by Plaintiff.” The court further noted: Especially important to the resolution of this case was the Court’s finding that Defendants engaged in a massive and entirely successful campaign of spoliation to prevent Plaintiff from being able to have [J & J] itself or its stock valued. This allowed J & J to avoid its obligation to redeem Plaintiff’s stock. This spoliation, in turn, made it nearly impossible to fashion the statutory equitable remedy of a forced stock repurchase because the record was devoid of evidence on the value of J & J or its stock. In fashioning the stock buyback remedy, the Court relied on the only uncontroverted evidence of J & J stock value—the price Plaintiff actually paid for his stock—and required Defendants to pay interest on that amount in order to create a ‘fair value’. See MCL 450.1489. Regarding its remedy for minority shareholder oppression, the court stated that it relied on MCL 450.1489(l)(e), which permitted trial courts to order the purchase at fair value of the shares of a shareholder, either by the corporation or by the officers. The trial court additionally opined that defendants’ claim that the court awarded monetary damages was incorrect, because while the final result of a forced buyout under MCL 450.1489(l)(e) was a payment of money, the relief actually sought was equitable in nature as it compelled a party to purchase shares. In its opinion and order, the court further provided: While the calculation of the remedy—the purchase of Plaintiff’s shares— references back to the one undisputed piece of evidence in the record concerning the value of J & J stock (the price of the J & J stock Plaintiff purchased) the oppressive acts that occasioned the application of the remedy do not rely on any act outside the applicable statute of limitations. Given the success of Defendants’ spoliation activities, the Court relied upon the only J & J uncontroverted stock value that was in the record: the stock price of Plaintiff’s initial purchase in 1991. The interest required by the Opinion was imposed as a part of the statutory obligation to create a “fair value” for Plaintiff’s stock. Addressing defendants’ statute of limitations argument, the trial court reiterated that the six-year statute of limitations under MCL 450.1489 served as the basis “in fashioning its equitable remedy under MCL 450.1489.” The court also stated that while “MCL 450.1489(1)(f) provides a 2 or 3 year limitation, it is limited to actions for damages under that subsection,” and this Court expressly stated in Turner I that the limitations period of BCA claims is six years. The trial court additionally expressed that it was required to “calculate the fair value of [plaintiff’s] shares and it is within the equitable power of this Court to include a reasonable interest rate to calculate the ‘fair value’ required by the statute.” On March 11, 2024, the trial court further issued an opinion and order regarding payment of plaintiff’s reasonable attorney fees and determination of the J & J stock price “based on its -5- earlier determination that Defendants violated MCL 450.1487 and [MCL] 450.1489.” At the outset, the court noted that two factors influenced its decision regarding the proper award of attorney fees, costs, and interests: (1) “the effectiveness of Defendants’ three-decade war of attrition to avoid [affording] Plaintiff his shareholder rights and the need to hold them equitably responsible for the damage they caused Plaintiff”; and (2) “the unexplained five-year delay that occurred between the 2014 Court of Appeals decision recognizing that Plaintiff remained a shareholder of J & J after he was terminated from his employment . . . and the bringing of this suit in 2019.” The trial court clarified that while the cited factors were not “equivalents,” plaintiff’s delay in filing the underlying suit “should not be without consequence in assessing the equitable remedy.” The trial court then addressed the fair value of plaintiff’s shares in J & J, noting that it previously determined “the fair value to be $25,000 dollars ($100 per share) plus the interest on the same (from May 1992 through the present)”; thus, the two remaining issues related to the fair value determination were the appropriate interest rate and whether simple or compound interest was warranted. The court ultimately opined, “As neither party has persuaded the Court that it is compelled to arrive at a certain result in its determination of an equitable interest rate, the Court concludes that a rate of 7% is justifiable as a near midpoint between the extreme end point[] rates suggested by the parties and is a rate in which even Defendants seem to acquiesce.” The trial court also declined to award compound interest, noting that courts, including this Court, generally disfavor the administration of compound interest. On March 28, 2024, the trial court entered a judgment stating the following: 1. [A] judgment is entered in favor of Plaintiff Jay Turner and against Defendant J & J Slavik, Inc. only on [BCA] Counts I and II for $200,000 for Plaintiff’s reasonable costs and attorney fees on only those Counts; 2. [A] judgment is entered in favor of Plaintiff Jay Turner and against both Defendant J & J Slavik, Inc. and Defendant J. Ronald Slavik on Count IV [minority shareholder oppression], namely, Defendants shall purchase Plaintiff’s 250 shares of common stock of J & J Slavik, Inc. for $25,000 plus simple, non-compounded interest on that principal from May, 1992 to the date hereof at the rate of 7% per annum; and 3. [T]he Court having previously dismissed Plaintiff’s Count III [breach of fiduciary duty], any other claims of Plaintiff and any other relief sought by Plaintiff are dismissed and denied. Defendants subsequently moved for relief from the first paragraph of the listed judgment, reiterating their previous arguments regarding the inapplicability of MCL 450.1487(5) to plaintiff’s remaining claims under the BCA such that attorney fees were impermissible pursuant to the American Rule. On August 23, 2024, the trial court issued an opinion and amended judgment granting defendants’ motion for relief because there was no basis for awarding attorney fees for plaintiff’s claims arising under MCL 450.1487. The amended final judgment provided: -6-  1. Defendants’ motion for relief from Paragraph 1 of the March 28, 2024 Judgment is GRANTED and the paragraph 1 of the Final Judgment dated March 28, 2024 is STRUCK. 2. The remaining paragraphs in the Final Judgment dated March 28, 2024 remain in effect: to wit, A. [A] judgment is entered in favor of Plaintiff Jay Turner and against both Defendant J & J Slavik, Inc. and Defendant J. Ronald Slavik on Count IV, namely, Defendants shall purchase Plaintiffs 250 shares of common stock of J & J Slavik, Inc. for $25,000 plus simple, non-compounded interest on that principal from May, 1992 to the date hereof at the rate of 7% per annum; and B. [T]he Court having previously dismissed Plaintiffs Count III, any other claims of Plaintiff and any other relief sought by Plaintiff are dismissed and denied. Following the issuance of this judgment, the present appeal ensued. II. SUMMARY DISPOSITION Defendants contest the trial court’s denial of summary disposition on several grounds. We disagree. A trial court’s decision on a motion for summary disposition is reviewed de novo. White v Henry Ford Macomb Hosp Corp, 346 Mich App 405, 419; 12 NW3d 635 (2023). A claim is properly dismissed under MCR 2.117(C)(7) if it is barred by the doctrine of res judicata. King v Munro, 329 Mich App 594, 598; 944 NW2d 198 (2019). “When reviewing a motion under MCR 2.116(C)(7), this Court must accept all well-pleaded factual allegations as true and construe them in favor of the plaintiff unless other evidence contradicts them.” Dextrom v Wexford Co, 287 Mich App 406, 428; 789 NW2d 211 (2010). This Court must further “consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in a light most favorable to the nonmoving party.” Fields v Suburban Mobility Auth for Regional Transp, 311 Mich App 231, 234; 874 NW2d 715 (2015). “If there are no material facts in dispute or if reasonable minds could not differ regarding the legal effect of those facts, the issue of governmental immunity is resolved as an issue of law.” Norris v Lincoln Park Police Officers, 292 Mich App 574, 578; 808 NW2d 578 (2011). “But when a relevant factual dispute does exist, summary disposition is not appropriate.” Fields, 311 Mich App at 234 (quotation marks and citation omitted). Regarding summary disposition under MCR 2.118(C)(8) and (C)(10), this Court has previously explained: A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the factual allegations in the complaint. When considering such a motion, a trial court must accept all factual allegations as true, deciding the motion on the pleadings alone. A motion under MCR 2.116(C)(8) may only be granted when a -7-  claim is so clearly unenforceable that no factual development could possibly justify recovery. A motion under MCR 2.116(C)(10), on the other hand, tests the factual sufficiency of a claim. When considering such a motion, a trial court must consider all evidence submitted by the parties in the light most favorable to the party opposing the motion. A motion under MCR 2.116(C)(10) may only be granted when there is no genuine issue of material fact. A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might differ. [El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019).] “The doctrine of res judicata is intended to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and encourage reliance on adjudication, that is, to foster the finality of litigation.” Bryan v JPMorgan Chase Bank, 304 Mich App 708, 713; 848 NW2d 482 (2014) (quotation marks and citation omitted). Res judicata bars a claim when the following elements are satisfied: “(1) the prior action was decided on the merits, (2) both actions involve the same parties or their privies, and (3) the matter in the second case was, or could have been, resolved in the first.” Garrett v Washington, 314 Mich App 436, 441; 886 NW2d 762 (2016) (quotation marks and citation omitted). The “burden of proving the applicability of the doctrine of res judicata is on the party asserting it.” Id. (quotation marks and citation omitted). Defendants contend that they were entitled to summary disposition under MCR 2.116(C)(7) because “Plaintiff’s second lawsuit against J & J involved the same operative facts as Plaintiff’s § 489 claim in this third suit, that second case was adjudicated on the merits, and Ron Slavik is in privity with J & J.” Defendants further assert that the trial court issued an order dismissing plaintiff’s BCA claims with prejudice at the conclusion of the second suit, such that the judgment bars the pursuit of plaintiff’s present claims under the doctrine of res judicata. The record belies defendants’ assertions. First, res judicata did not bar plaintiff’s claims because the matters contested in the instant case were not, and could not have been, resolved during the prior litigation because the claims arose after this Court issued the Turner II decision, in which it ruled that plaintiff was a shareholder. Second, neither this Court nor the trial court previously addressed the merits of plaintiff’s contentions regarding defendants’ violation of the BCA. The Turner I and Turner II decisions of this Court pertained to the statute of limitations and plaintiff’s status as a shareholder. The trial court’s order of dismissal, despite defendants’ contention otherwise, did not include any language regarding prejudice or any legal analysis concerning shareholder oppression. Rather, the judgment states: 1. Plaintiff Jay S. Turner is a shareholder in Defendant J & J Slavik, Inc. in accordance with the Court of Appeals’ Opinions dated May 10, 2012 and April 15, 2014 in its Docket Nos. 303243 and 313936, respectively, incorporated herein by this reference. 2. Plaintiff’s other claims are dismissed. -8-  3. This Judgment resolves the last pending claim and closes the case. Third, “The decision whether to grant dismissal with or without prejudice, by definition, determines whether a party may refile a claim or whether the claim is permanently barred.” Kewadin Casinos Gaming Auth v Patterson Earnhart Real Bird & Wilson LLP, ___ Mich App ___, ___; ___ NW3d ___ (2026) (Docket No. 371255); slip op at 10 (quotation marks and citation omitted). “Thus, in deciding whether dismissal should be with or without prejudice, the trial court should consider whether the doctrine of res judicata would bar subsequent actions involving the same claim.” Id. at ___; slip op at 10 (quotation marks and citation omitted). As defendants fail to identify any prior adjudication on the substance of plaintiff’s allegations under the BCA, whether in the previous suits or before this Court, it is further evidence that the dismissal was without prejudice. In light of the foregoing, the trial court properly denied summary disposition under MCR 2.116(C)(7). Defendants next argue that summary disposition was proper pursuant to MCR 2.116(C)(8) because plaintiff failed to sufficiently allege shareholder oppression in his complaint. MCL 450.1489 of the BCA, provides that “[a] shareholder” may bring what is known as a direct action “to establish that the acts of the directors or those in control of the corporation are illegal, fraudulent, or willfully unfair and oppressive to the corporation or to the shareholder.” The statute does not include the word “minority,” but courts have determined the statute permits actions by “minority shareholders,” see e.g., Madugula v Taub, 496 Mich 685, 697; 853 NW2d 75 (2014), presumably because minority shareholders are generally vulnerable to oppression, see Estes v Idea Engineering & Fabrications, Inc, 250 Mich App 270, 278; 649 NW2d 84 (2002). In Franks v Franks, 330 Mich App 69, 99; 944 NW2d 388 (2019), this Court explained that plaintiffs bringing shareholder oppression claims must plead and prove that they were shareholders of a corporation, the defendants were directors of the corporation, and the defendants engaged in acts that were “ ‘illegal, fraudulent, or willfully unfair and oppressive to the corporation or to them as shareholders.’ ” The Franks Court further provided: To the extent that plaintiffs maintained that defendants’ acts were willfully unfair and oppressive to them as shareholders, they had to be able to prove that the acts amounted to a “continuing course of conduct or a significant action or series of actions that substantially” interfered with their interests as shareholders and that defendants took those acts with the intent to interfere with their interests as shareholders. [Id. at 99-100, quoting MCL 450.1489(3).] Examples of actionable conduct include interference with shareholders’ statutory rights, such as the rights to vote, receive dividends, inspect corporate records, and elect directors. See Madugula, 496 Mich at 718-719.2 Additionally, “a breach of the rights and interests contained in the stockholders’ agreement could be evidence of shareholder oppression.” Id. at 720. 2 See also MCL 450.1441 (right to vote); MCL 450.1487 (right to inspect corporate books); MCL 450.1345 (right to receive distributions); MCL 450.1404 (right to participate in meetings); MCL 450.1505 (right to elect directors). -9-  In his complaint, plaintiff asserted that he was recognized as a shareholder of J & J pursuant to Turner II, that Slavik was the director of J & J, and that defendants had “taken numerous actions that are illegal, fraudulent or willfully unfair and oppressive to [plaintiff].” Plaintiff contended that “Slavik has continued to behave as if he is the sole shareholder of J & J Slavik, excluding [plaintiff] from any participation in corporate decisions, and refusing to provide all requested and necessary information to [plaintiff] about the past or present company’s operations, assets, finances.” Plaintiff further alleged that he submitted numerous requests for pertinent documents and information concerning the entity’s operations and future shareholder meetings “so that he could determine the current status of J&J Slavik, the value of the Company and his stock in J&J Slavik, and to best maximize value for the benefit of all shareholders,” but defendants “failed or refused to produce to [plaintiff] any of the information that [he] has requested.” While defendants aver otherwise, plaintiff pleaded that defendants took those acts with the intent to interfere with his interest as a shareholder as plaintiff advanced that defendants were “manipulating the finances of the company to benefit themselves and harm [plaintiff],” and “taking advantage of the company’s tax loss carry forwards without allowing [plaintiff] to benefit.” Accordingly, the trial court appropriately ruled that summary disposition was improper under MCR 2.116(C)(8) because plaintiff sufficiently advanced a minority shareholder oppression claim. Defendants additionally challenge the trial court’s denial of summary disposition as to plaintiff’s shareholder oppression claim under MCR 2.116(C)(10) on a similar basis. Examining all the evidence submitted by the parties in the light most favorable to plaintiff, there was a genuine issue of material fact regarding whether defendants’ conduct was illegal, fraudulent, or willfully unfair and oppressive to the corporation or to plaintiff as a shareholder. See Franks, 330 Mich App at 99-100. In conjunction with plaintiff’s allegations, there was documentary evidence of plaintiff’s repeated requests between 2015 and 2017 for information regarding J & J’s finances, operations, and shareholder meetings, as well as plaintiff’s deposition testimony that defendants continually denied his status as a shareholder and refused his solicitations for pertinent company documents. Moreover, the redemption agreement further established a genuine factual dispute regarding defendants’ purported shareholder oppression because the subject agreement mandated that plaintiff sell, and J & J purchase, plaintiff’s common stock at fair market value as of the last day of the year preceding the date of his termination, December 31, 1991, which allegedly did not occur due to defendants’ continued refusal to provide the relevant financial documents to determine the value of plaintiff’s shares. See Madugula, 496 Mich at 720. For the foregoing reasons, summary disposition of plaintiff’s shareholder oppression claim was properly denied under MCR 2.116(C)(10). III. BREACH OF FIDUCIARY DUTY Plaintiff argues that the trial court improperly entered a directed verdict regarding his breach of fiduciary duty claim against Slavik. We disagree. This Court reviews de novo a trial court’s decision regarding a party’s motion for a directed verdict.” Smith v Foerster-Bolser Const, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006). “A directed verdict is appropriate only when no factual question exists on which reasonable jurors could differ.” Id. at 427-428. This Court views the evidence that was presented to the trial court, up to the time of the directed verdict motion, “in the light most favorable to the nonmoving party, granting that party every reasonable inference, and resolving any conflict in the evidence in that -10- party’s favor to decide whether a question of fact existed.” Derbabian v S & C Snowplowing, Inc, 249 Mich App 695, 701-702; 644 NW2d 779 (2002). “[A] fiduciary relationship arises from the reposing of faith, confidence, and trust and the reliance of one on the judgment and advice of another.” Vicencio v Ramirez, 211 Mich App 501, 508; 536 NW2d 280 (1995). In Michigan, directors and officers of corporations owe fiduciary duties and a strict duty of good faith to the corporation they serve, as well as directly to their shareholders. Murphy v Inman, 509 Mich 132, 146; 983 NW2d 354 (2022). “To establish a claim for breach of fiduciary duty, a plaintiff must prove (1) the existence of a fiduciary duty, (2) breach of that duty, and (3) damages caused by the breach of duty.” Highfield Beach at Lake Mich v Sanderson, 331 Mich App 636, 666; 954 NW2d 231 (2020). Damages in a tort action cannot be presumed “but, instead, must be proven.” Abdelmaguid v Dimensions Ins Group, LLC, 350 Mich App 214, 229; 31 NW3d 833 (2024). “Further, damages must be on the basis of an actual, present injury.” Id. (quotation marks and citation omitted). This Court has explained: The general rule is that remote, contingent, and speculative damages cannot be recovered in Michigan in a tort action. A plaintiff asserting a cause of action has the burden of proving damages with reasonable certainty, and damages predicated on speculation and conjecture are not recoverable. Damages, however, are not speculative simply because they cannot be ascertained with mathematical precision. Although the result may only be an approximation, it is sufficient if a reasonable basis for computation exists. Moreover, the law will not demand that a plaintiff show a higher degree of certainty than the nature of the case permits . . . . Furthermore, the certainty requirement is relaxed where damages have been established but the amount of damages remains an open question. [Health Call of Detroit v Atrium Home & Health Care Servs, Inc, 268 Mich App 83, 96; 706 NW2d 843 (2005) (quotation marks and citations omitted).] As recognized by the trial court, even assuming that Slavik breached his fiduciary duties to plaintiff, plaintiff was unable to establish the damages arising out of the alleged improper conduct. The most recent document reflecting J & J’s financial condition was dated August 31, 2010, while the applicable statute of limitations confined the matter to the period after August 12, 2016, resulting in a six-year gap with no proofs establishing either the entity’s value or the value of plaintiff’s shares. While plaintiff contends that he was barred from presenting evidence concerning J & J’s assets, he fails to indicate which proofs would have adequately demonstrated the entity’s economic status as of 2016, such that the jury could reasonably determine the value of plaintiff’s stock during the relevant statutory period, or how any jury instruction would enable the jury to do so considering this six-year evidentiary gap. See Chelsea Investment Group LLC v Chelsea, 288 Mich App 239, 255; 792 NW2d 781 (2010) (noting that a party may not recover damages that are speculative or premised on conjecture). Although the absence of evidence was allegedly attributable to defendants’ spoliation of evidence, and a trial court may—as a sanction for spoliation of evidence—instruct the jury to presume that the destroyed evidence would have been adverse to the spoliator, there was nevertheless no basis upon which the jury could reasonably deduce the value of J & J or plaintiff’s shares. See Komendat v Gifford, 334 Mich App 138, 150; 964 NW2d 75 (2020 (providing that a party’s failure to preserve evidence may result in a sanction in the form of a spoliation instruction). -11- As previously noted, the most recent financial documentation was dated August 2010, and any attempt to determine value for the relevant period after August 2016 would have required the jury to speculate as to six years of the entity’s operations, performance, liabilities, and overall financial condition without any competent evidentiary foundation. These concerns are reflected in this Court’s decision not to recognize an independent tort claim for spoliation of evidence, observing: The extent and the amount of damages in a spoliation case are also highly speculative, because it is impossible to know what the destroyed evidence would have shown, and there is no way to determine whether a plaintiff would have had a significant