WILDER, J.
Defendant Valero Energy Corporation
This matter arises from the alleged contamination of plaintiffs' properties by leaky underground storage tanks located on property that was operated as a gasoline station at 22645 West Eight Mile Road, in Detroit, Michigan. Valero challenges the trial court's second denial of its motion for summary disposition brought pursuant to MCR 2.116(C)(1), following this Court's remand in Glenn v. TPI Petroleum, Inc, unpublished order of the Court of Appeals, entered October 7, 2011 (Docket No. 305145). In remanding this case to the trial court, this Court stated, in relevant part:
On remand, the trial court again denied Valero's motion for summary disposition.
As recognized by this Court in Yoost v. Caspari, 295 Mich.App. 209, 219, 813 N.W.2d 783 (2012):
Specifically:
To the extent this case involves the interpretation and application of a statute, our review is de novo. The primary goal when interpreting a statute is to ascertain and give effect to the Legislature's intent. Mich. Ed. Ass'n v. Secretary of State (On Rehearing), 489 Mich. 194, 217-218, 801 N.W.2d 35 (2011). "The words contained in a statute provide us with the most reliable evidence of the Legislature's intent." Green v. Ziegelman, 282 Mich.App. 292, 301, 767 N.W.2d 660 (2009). If statutory language is unambiguous, the Legislature is presumed to have intended the plain meaning of the statute. Fleet Business Credit, LLC v. Krapohl Ford Lincoln Mercury Co., 274 Mich.App. 584, 591, 735 N.W.2d 644 (2007). An unambiguous statute must be enforced as written. Fluor Enterprises, Inc. v. Dep't of Treasury, 477 Mich. 170, 174, 730 N.W.2d 722 (2007).
Valero contends the trial court failed, on remand, to follow the instructions of this Court to explain aspects of its ruling. As discussed in K & K Constr., Inc. v. Dep't of Environmental Quality, 267 Mich.App. 523, 544-545, 705 N.W.2d 365 (2005):
In vacating the original order denying summary disposition to defendant and remanding to the trial court, this Court specifically instructed the trial court to do the following:
The majority of the trial court's opinion was simply a recitation of the evidence relied on by plaintiffs before Valero submitted various affidavits and documentation contradicting that evidence. While this recitation may be construed as an explanation of the factual basis for the trial court's determination to exercise jurisdiction, it remains deficient in that it did not, as ordered by this Court, identify the specific subsection of the applicable statute that it relied on to establish jurisdiction. Further, the remand order required the trial court to explain its findings in light of the covenant deed and affidavits provided by Valero. But without explanation, the trial court continued to rely on the allegations made by plaintiffs before the submission of the covenant deed and Valero's affidavits. The trial court ignored the well-established rules pertaining to summary disposition, which were implied in the remand order from this Court. Specifically:
In the circumstances of this case, Valero came forward with documentary evidence to dispute plaintiffs' allegations, but the trial court incorrectly continued to construe the allegations in plaintiffs' pleadings as true. See Id. at 222, 677 N.W.2d 874. See also SSC Assoc. Ltd. Partnership v. Gen. Retirement Sys. of Detroit, 192 Mich.App. 360, 364, 480 N.W.2d 275 (1991) ("Opinions, conclusionary denials, unsworn averments, and inadmissible hearsay do not satisfy the court rule; disputed fact (or the lack of it) must be established by admissible evidence.").
Further, while the trial court, in a conclusory manner, determined that sufficient evidence existed to link Wideman to Valero, it did not explain, as required by this Court's order, how Valero was to be held legally liable and why the corporate entities could be "disregard[ed]," particularly when Wideman does not work for Valero and plaintiffs failed to plead the concepts or theories of vicarious liability, agency, alter ego, or piercing of the corporate veil. Glenn, unpublished order of the Court of Appeals, entered October 7, 2011 (Docket No. 305145).
"`It is the duty of the lower court or tribunal, on remand, to comply strictly with the mandate of the appellate court.'" K & K Constr., Inc., 267 Mich.App. at 544-545, 705 N.W.2d 365, quoting Rodriguez v. Gen. Motors Corp. (On Remand), 204 Mich.App. 509, 514, 516 N.W.2d 105 (1994). The trial court erred by failing to comply on remand with the very specific directives of this Court.
Valero also challenges the trial court's determination regarding the existence
In accordance with MCL 600.711, demonstration of the existence of any of the following relationships between a corporation and the state of Michigan provides a sufficient basis for a court to exercise general personal jurisdiction over the corporation:
It is undisputed that Valero has not consented to the litigation and is not incorporated in the state of Michigan. Rather, plaintiffs contend that Valero conducts "a continuous and systematic part of its general business" in Michigan, MCL 600.711(3), which Valero denies. In support of their claim, plaintiffs rely on (1) a "Valero Map of Operations,"
Neither MCL 600.711, nor caselaw, has specifically defined what constitutes "a continuous and systematic part" of a corporation's general business. But courts have looked at whether the particular corporate entity has a physical location, officers, employees, or bank accounts in Michigan. See Oberlies v. Searchmont Resort, Inc., 246 Mich.App. 424, 428, 633 N.W.2d 408 (2001). Of additional guidance are cases that have considered a corporation's conduct in soliciting and procuring sales and purchases within Michigan. See Helzer v. F Joseph Lamb Co., 171 Mich.App. 6, 11, 429 N.W.2d 835 (1988); Lincoln v. Fairfield-Nobel Co., 76 Mich.App. 514, 518, 257 N.W.2d 148 (1977); Kircos v. Goodyear Tire & Rubber Co., 70 Mich.App. 612, 614, 247 N.W.2d 316 (1976). The United States Supreme Court has found it appropriate to exercise general jurisdiction over foreign corporations when it has been determined that "their affiliations with the State are so `continuous and systematic' as to render them essentially at home in the forum State." Goodyear Dunlop Tires Operations, SA v. Brown, 564 U.S. ___, ___, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011). In Kircos v. Lola Cars Ltd., 97 Mich.App. 379,
This Court may also consult dictionary definitions to determine the meaning of "a continuous and systematic part" of a corporation's general business as used in MCL 600.711(3). See People v. Lewis, 302 Mich.App. 338, 342, 839 N.W.2d 37 (2013). The word "continuous" is defined as "uninterrupted in time; without cessation[.]" Random House Webster's College Dictionary (2001). The word "systematic" is defined as "having, showing, or involving a system, method, or plan" and "given to or using a system or method[.]" Id. Thus, taking into account pertinent caselaw and these dictionary definitions, we conclude that courts in Michigan would have general jurisdiction over defendants if defendants had a general plan for conducting business on a regular basis within the state of Michigan.
Plaintiffs have not carried their burden to establish the existence of general jurisdiction in this matter. According to Valero's affidavits, it is a holding company and a Delaware corporation with its principal place of business in San Antonio, Texas. Valero is not registered to do business in Michigan, does not lease or own real property, and it has neither employees nor direct involvement in the provision of goods or services — in Michigan or elsewhere. Steve Gilbert, Valero's assistant secretary and its disclosure and compliance officer, also averred that Valero has no association, ownership, or contact with the Detroit gasoline station alleged to have caused the contamination, and that Wideman
In his own affidavit, Wideman also explained that he does not work for Valero, but instead, he is employed by Valero Services, Inc., which assigns him to work for subsidiaries of Valero, such as MRP, Michigan Reutilization, LLC, or TPI Petroleum, Inc., and Total Petroleum, Inc. Wideman's affidavit is consistent with the correspondence involving Wideman submitted by plaintiffs, which connected him only to subsidiaries MRP and TPI, not Valero. Valero's assistant secretary explained that Valero has no ownership or
Plaintiffs assert that any distinction between Valero and the various subsidiary corporations constitutes a "shell game" and a "sham." But, in accordance with Avery v. American Honda Motor Car Co., 120 Mich.App. 222, 225, 327 N.W.2d 447 (1982):
Because "[t]he burden to prove jurisdictional facts is on the plaintiff" the mere suggestion in this litigation that Valero is, in some manner, conjoined with various subsidiaries that operate in Michigan is not sufficient to establish general personal jurisdiction. Id. Specifically, plaintiffs failed to plead or demonstrate an adequate "alter ego" relationship between Valero and its subsidiaries or that Valero had any control over the subsidiaries. In addition, as noted by the United States Supreme Court, "[f]low of a manufacturer's products into the forum ... may bolster an affiliation germane to specific jurisdiction. But ties serving to bolster the exercise of specific jurisdiction do not warrant a determination that, based on those ties, the forum has general jurisdiction over a defendant." Goodyear, 564 U.S. at ___, 131 S.Ct. at 2855 (citation omitted). "A corporation's continuous activity of some sorts within a state ... is not enough to support the demand that the corporation be amenable to suits unrelated to that activity." Id. at ___, 131 S.Ct. at 2856 (quotation marks omitted), citing Int'l Shoe Co. v. State of Washington, Office of Unemployment Compensation & Placement, 326 U.S. 310, 318, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Therefore, in its initial order, the trial court correctly determined that it lacked general personal jurisdiction over Valero.
This does not, however, complete the inquiry as it remains to be determined whether Valero should be subject to limited personal jurisdiction. Limited personal jurisdiction is governed by MCL 600.715, which provides:
In the factual circumstances of this case, MCL 600.715(4) is not applicable.
This Court has explained that a "two-step analysis" is to be undertaken in determining whether a court may exercise limited personal jurisdiction. Yoost, 295 Mich.App. at 222-223, 813 N.W.2d 783. Specifically:
As stated in Oberlies, 246 Mich.App. at 430, 633 N.W.2d 408, "Our Legislature's use of the word `any' to define the amount of business that must be transacted establishes that even the slightest transaction is sufficient to bring a corporation within Michigan's long-arm jurisdiction." In turn, this Court has explained the "three-part test" used to determine whether the exercise of limited personal jurisdiction "comports with due process[.]" Yoost, 295 Mich.App. at 223, 813 N.W.2d 783.
Again, contrary to this Court's order on remand, the trial court failed to identify which subsection(s) of MCL 600.715 it relied on to establish limited personal jurisdiction. There is no dispute that the Detroit gasoline station that is alleged to be the source of contamination in this case has never been owned or operated by Valero. Significantly, plaintiffs' complaint does not contain any allegations of wrongful acts or ownership by Valero of the subject gasoline station. The complaint is also silent with regard to the theory or basis on which plaintiffs seek to hold Valero liable for the damages alleged. Necessarily, this precludes the establishment of limited personal jurisdiction under MCL 600.715(2), which requires, "The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort." Again, plaintiffs' complaint is silent with regard to any specific act alleged to have been done by Valero that could be construed as "resulting in an action for tort."
The only bases remaining on which limited personal jurisdiction over Valero might have been established are MCL 600.715(1) ("The transaction of any business within the state.") and MCL 600.715(5) ("Entering into a contract for services to be performed or for materials to be furnished in the state by the defendant."). Plaintiffs assert that jurisdiction is appropriate under both of these subsections because of the work performed by Wideman in remediation of the contaminated site and his indication on various websites that he is affiliated with Valero. Plaintiffs further assert that various websites establish that Valero transacts business within the state because they show the existence of various Valero branded gasoline stations and the supplying of Valero branded products to the stations.
In support of these allegations, plaintiffs submitted items of correspondence authored by Wideman or forwarded to him regarding remediation of the contaminated site. The correspondence only identifies Wideman with MRP and TPI, not Valero. Despite these designations, plaintiffs argue that the subsidiaries constitute the alter ego of Valero, justifying piercing of the corporate veil. Plaintiffs did not actually plead an alter ego theory or request the trial court to pierce the corporate veil of Valero in their pleadings. Arguably, by failing to raise the theories of vicarious liability and alter ego or piercing of the corporate veil in their pleadings, plaintiffs' contentions in this regard could have been dismissed for failure to state a claim. However, Valero only sought dismissal under MCR 2.116(C)(1) (lack of jurisdiction) and not in accordance with MCR 2.116(C)(8). See Dutton Partners, LLC v. CMS Energy Corp., 290 Mich.App. 635, 642 n. 3, 802 N.W.2d 717 (2010).
In addition, "`to state a claim for tort liability based on an alleged parent-subsidiary relationship, a plaintiff would have to allege: (1) the existence of a parent-subsidiary relationship, and (2) facts that justify piercing the corporate veil.'" Id. at 642-643, 802 N.W.2d 717, quoting Seasword v. Hilti, Inc. (After Remand), 449 Mich. 542, 548, 537 N.W.2d 221 (1995). Plaintiffs have initially failed to establish the existence of a parent-subsidiary relationship. See Dutton Partners, LLC, 290 Mich.App. at 642, 802 N.W.2d 717. Further, plaintiffs have failed to allege sufficient facts to establish that the corporate veil should be pierced. This
In the circumstances of this case, there has been no demonstration by plaintiffs that Valero is a "mere instrumentality of another entity...." Id. at 457, 559 N.W.2d 379 (citations and quotation marks omitted). Factors used by courts to determine the propriety of piercing the corporate veil include: (1) whether the corporation is undercapitalized, (2) whether separate books are kept, (3) whether there are separate finances for the corporation, (4) whether the corporation is used for fraud or illegality, (5) whether corporate formalities have been followed, and (6) whether the corporation is a sham. Laborers' Pension Trust Fund v. Sidney Weinberger Homes, Inc., 872 F.2d 702, 704-705 (C.A.6, 1988).
Based on the record before us, we conclude that Valero correctly maintains that it is a holding company, without employees or direct involvement in the provision of goods or services. Plaintiffs have not come forward with any evidence or demonstrated that there has been a failure to maintain Valero's separate corporate identity through the comingling of funds with the relevant subsidiaries or that Valero controlled the decisions and actions of the other corporate entities. The only tangible indication of a relationship between Valero and the subsidiaries is the location of their offices at a shared address. While a corporate address may be shared, there is no evidence to indicate that separate corporate formalities have not been maintained. Despite having been afforded an opportunity to conduct additional discovery, plaintiffs have not come forward with any evidence to dispute Valero's affidavits or to substantiate the implication that justification exists to pierce Valero's corporate veil.
In addition, there is no activity on the part of Valero to demonstrate that it engaged or participated in any wrongful act. It is undisputed that Valero never owned or operated the subject property or
Plaintiffs' failure to meet the initial requirement of establishing that limited personal jurisdiction exists under Michigan's long-arm statute, Yoost, 295 Mich.App. at 222, 813 N.W.2d 783, renders the second inquiry — whether the exercise of jurisdiction comports with due process — unnecessary.
We reverse the decision of the trial court and remand the case for entry of summary disposition in favor of Valero and further proceedings not inconsistent with this opinion. Valero may tax costs. MCR 7.219.
METER, P.J., and JANSEN, J., concurred with WILDER, J.
