United States District Court, E.D. Michigan, Northern Division
Patricia T. Morris, Magistrate Judge.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT IN PART
L. Ludington, United States District Judge.
12, 2018, Plaintiff Bank of the Ozarks (Bank OZK) filed a
complaint against Defendants Perfect Health Skin and Body
Center, PLLC (Perfect Health), and one of its alleged
members, Dr. Theodore Bash. ECF No. 1. The complaint alleges
that Perfect Health is in default of its obligations under an
Equipment Financing Agreement between Bank of the Ozarks and
Perfect Health, and that $139, 822.38 remains due and owing
under the Equipment Financing Agreement. The complaint
asserts six counts for relief, including a breach of Dr.
Bash's guaranty of Perfect Health's obligation under
the Equipment Financing Agreement (Count I); breach of the
Equipment Financing Agreement by Perfect Health (Count II);
breaches of contracts implied in law, implied in fact, and
promissory estoppel against both Defendants (Counts III, IV,
and V); and one count for claim and delivery of collateral
subject to the Bank OZK's security interest (Count VI).
20, 2018, Bank OZK filed an ex parte motion for possession
pending final judgment. ECF No. 6. The motion asserted that
Bank OZK has a security interest in, among other things,
certain equipment: 5 QANS Assessment Systems (5-QANS), and an
“Aspen Laser System” (Laser). The Equipment
Financing Agreement was attached to the motion, as well as
the UCC financing statement, reflecting Bank OZK's
security interest in the equipment. ECF No. 6-2, 6-3. The
motion asserted that the collateral is in imminent danger and
sought possession of the collateral pending final judgment.
The motion also requested an ex parte restraining order
pending a hearing on the motion for possession pending final
judgment. On June 21, 2018, the Court entered an order
denying Bank OZK's request for an ex parte restraining
order, and scheduling the motion for possession pending
judgment for hearing. ECF No. 7. The Court explained that
Bank OZK did not make the requisite showing required by MCR
3.105 (E)(1)(b) for an ex parte restraining order. A hearing
on the motion for possession pending judgment was held on
July 11, 2018. The motion was granted. ECF No. 20.
counsel filed a motion to withdraw, which was granted.
Attorney James Meyer was substituted as counsel for Dr. Bash.
Attorney Veronica Turner later filed an appearance on behalf
of Dr. Bash as well. Defendant Perfect Health was directed to
secure new counsel but has not done so. On November 19, 2018,
Plaintiff moved for partial summary judgment against
Defendant Bash on Count I (Breach of Guaranty) and Count III
(Breach of Contract), which was granted. Plaintiff's
amended complaint also contains the following counts, which
appear on a cursory review to have been pled, at least in
significant part, in the alternative to Counts I and III:
Count IV (Breach of Contract Implied in Law); Count
(Breach of Contract Implied in Fact); and Count V (Promissory
Estoppel). The amended complaint also contains pending counts
for Fraud (Count VI); Conversion (Counts VII, VIII); RICO
violation (Count IX); and Claim & Delivery (against
Perfect Health only) (Count X). Plaintiff has not sought
summary judgment or voluntary dismissal of those counts.
December 12, 2018, the Court granted the parties'
stipulation to extend dates by 90 days, setting a new
discovery deadline of March 19, 2019, and a dispositive
motion deadline of April 22, 2019. ECF No. 44. On February
27, 2019, Plaintiff sought entry of default against Defendant
Perfect Health, which was granted. Plaintiff has not yet
sought a default judgment.
April 22, 2019, Defendant Theodore Bash filed a motion for
summary judgment. ECF No. 57. The motion addresses the
pending counts for breach of implied contract and promissory
estoppel, repeating for the most part the same arguments
already addressed in the order granting summary judgment on
the express contract. The motion also addresses the pending
counts for fraud, conversion, and violation of RICO.
Plaintiff responded on May 13, 2019.
following facts were set forth in the Court's previous
order granting summary judgment in part. ECF No. 46. The
facts are derived from the exhibits attached by the parties
to their briefing on the previous motion for summary
judgment. ECF Nos. 39, 43. Perfect Health Skin and Body PLLC
(Perfect Health) did business as O Bella Aesthetics, a
medical spa in Okemos, MI. See Pl. M. Summ. J. Ex.
1, Corp. Res., ECF No. 39-1, PageID.331. According to
corporate formation documents dated November 30, 2012,
Richard MacAuley was the registered agent and sole member of
Perfect Health Skin and Body Center PLLC. See Def.
Resp. Ex. B, Corp. Filings, ECF No. 43-3, PageID.504. He was
also listed as the owner of Perfect Health. Id.
Subsequent filings listed MacAuley as the registered agent,
but did not list members of the LLC. Id.
resolution dated June 17, 2015 provides that:
Perfect Health Skin and Body Center, PLLC is owned 100% by
Ted Bash. Richard MacAuley has no ownership interest in the
company. Richard MacAuley shall be removed from company bank
account(s) effective as of June 1, 2015. Richard MacAuley
shall remain as clinic medical director until further notice.
Pl. M. Summ. J. Ex. 1, Corp. Res., ECF No. 39-1 at
Bash denies any knowledge of this corporate resolution,
denies signing the resolution, and denies that he has ever
been a member, owner, managing partner, managing director,
employee, agent, or representative of Perfect Health. Def.
Resp. Ex. A, Bash Aff. ¶ 6, ECF No. 43-2, PageID.493.
No. documents have been produced identifying Dr. Bash as an
agent or member of Perfect Health.
of 2016, an equipment financing agreement was entered into
between Bank OZK and Perfect Health. Pl. M. Summ. J. Ex. 2,
Equip. Finance Agt., ECF No. 39-1, PageID.333. Dr. Bash's
name is signed thereto. Id. PageID.337. He claims
that this signature was forged by someone with no authority