Grant v. Grant

Filing 90

MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART PlAINTIFF/COUNTERDEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. 74)AND GRANTING DEFENDANT/COUNTER PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. 76)1. Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ADRIENNE GRANT,
Plaintiff/Counter-Defendant,
vs.

Case No. 13-12240

ARMAND GRANT,

HON. AVERN COHN

Defendant/Counter-Plaintiff.
____________________________________/
MEMORANDUM AND ORDER
GRANTING IN PART AND DENYING IN PART PLAINTIFF/COUNTERDEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. 74)
AND
GRANTING DEFENDANT/COUNTER PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT (Doc. 76)1
I. Introduction
This is a dispute between plaintiff/counter-defendant Adrienne Grant (Plaintiff)
and her ex father-in-law defendant/counter-plaintiff Armand Grant (Defendant)2
centering around the ownership of a home in Michigan. The dispute is an unfortunate
result of the breakdown of a familial relationship. It should have settled.
Before the Court are the following motions:
1.

Plaintiff’s Motion for Summary Judgment on Defendant’s Claims of (1) Slander of
Title, (2) Tortious Interference, and (3) Conversion. (Doc. 74)
1

Although the Court originally scheduled these motions for hearing, upon review
of the parties’ papers, the matters are appropriate for decision without oral argument. See
Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).
2

Because plaintiff and defendant have the same surname and similar first names,
for clarity they will be referred to as “Plaintiff” and “Defendant.”

2.

Defendant’s Motion for Summary Judgment on Plaintiff’s Claims of (1) Breach of
Contract, and (2) Unjust Enrichment. Defendant also seeks summary judgment
on his claim for Conversion (Doc. 76)

For the reasons that follow, Defendant’s motion is GRANTED. Plaintiff’s motion is
GRANTED IN PART AND DENIED IN PART. When all is said and done, Plaintiff has
no right to anything from the sale of the Michigan home. What remains is a
determination of damages on Defendant’s claim for conversion and Plaintiff’s claim of
conversion based on jewelry. As to these claims, the parties would be best served by
simply letting go. It is time for this litigation to end.
II. Background
A. The Grant Family and The Michigan Home
Defendant is a California resident. His son, Michael Grant, was married to
Plaintiff. Michael Grant has since passed away.
Michael was mostly unemployed during his marriage to Plaintiff. Plaintiff was
employed less than a year during the marriage. During Plaintiff and Michael’s marriage,
they incurred significant debt. The record contains evidence that Defendant and other
family members loaned Plaintiff and Michael Grant money on several occasions and
that they used Defendant’s credit card for virtually all of their living expenses.3
Sometime in 2005, Plaintiff and Michael Grant decided to move to Michigan so
that their son could play hockey. On July 20, 2005, to assist Plaintiff and Michael in

3

The credit card statements, which form part of the voluminous exhibits, show
that Defendant essentially financed Plaintiff and Michael Grant’s lifestyle, and that of
their children. There are entries for multiple types of expenses, including for example
gas, groceries, restaurants, clothing, entertainment, sporting equipment, hotel stays,
spa visits, medical expenses, gym memberships, and car insurance.
2

their move to Michigan, Defendant purchased property at 2599 Spyglass, Oakland
Twp., MI (the Michigan home). The purchase price for the Michigan home was
$630,000, plus $14,012.15 in closing costs. Defendant made the initial down payment
of $284,932.15 for the purchase of the Michigan home from his funds. Defendant
financed the remainder of the purchase with a loan. Defendant paid the mortgage
payments, homeowners association dues, property taxes, and most of the utility bills.
Before the move, Plaintiff and Michael Grant sold their home in California. From
the sale, Plaintiff says she and Michael Grant made a $100,000 profit which Plaintiff
says Defendant held for the benefit of Plaintiff and Michael Grant. Plaintiff and Michael
Grant were left with $47,537.21.
In 2012, Plaintiff sued Michael Grant for divorce.
In April 2013, the state court entered a final judgment of divorce. Plaintiff was
granted any interest that Michael may have in the Michigan home.
Eventually, Defendant could no longer afford to continue to make mortgage
payments on the Michigan home. Defendant made arrangements to sell the Michigan
home. At first, Plaintiff and Defendant were cooperative with regard to the sale of the
Michigan home. This later changed.
On March 6, 2013, Defendant received an offer to purchase the Michigan home
for $700,000. The offer was conditioned on an interior viewing of the Michigan home.
Unfortunately, the relationship between Plaintiff and Defendant soured considerably
after the offer was made.
At some point thereafter, Defendant commenced summary eviction proceedings
against Plaintiff. The eviction proceedings culminated in a judgment of possession
3

entered in May of 2013.
While the eviction proceedings were pending, Plaintiff began to disassemble the
Michigan home and began selling off its amenities and fixtures, including, but not limited
to, built-in kitchen appliances, doors, mantel of the fireplace, fireplace screen, light
fixtures, bathroom vanity mirrors, built-in movie theater components (speakers, screen,
theater projector, and interior sconce lighting), built-in basement bar beverage
dispenser and bar appliances, electrical switch covers, and interior trim. Plaintiff says
she had a right to remove these items based on the judgment of divorce in which she
was awarded the marital home and its contents.
At some point, the prospective buyer drove by the Michigan home and took a
photo of Plaintiff selling its fixtures. Upon seeing the photos, Defendant obtained a
state court order prohibiting Plaintiff from removing the fixtures and damaging the
property, and requiring Plaintiff to allow the realtor and the buyer access to inspect the
home. During the inspection, the buyer discovered that there was significant damage to
the inside of the home. After the inspection, the buyer demanded that Defendant
replace the appliances removed by Plaintiff and demanded a reduction in the sale price
by $65,000 due to the damage. A revised purchase agreement reflecting a $62,500
reduced sale price was signed on May 7, 2013.
In June of 2013, Plaintiff then sued Defendant in state court. After the complaint
was filed, on June 4, 2013, Plaintiff recorded a notice of lis pendens against the home.
This halted the closing.
In August of 2013, Plaintiff offered to removed the lis pendens if the proceeds
from the sale were held in escrow. Defendant agreed subject to being reimbursed for
4

his costs in repairing the home for sale. Plaintiff declined Defendant’s offer.
The prospective buyer did not further pursue the Michigan home.
Eventually, after the case came to federal court on diversity, the Court ordered
Plaintiff to discharge the notice of lis pendens.
To date, Defendant says that there is another buyer for the home and the “gross
sale price will be $580,000.” It is not clear whether the home has been sold.
B. The Scope of the Claims
Plaintiff sued Defendant making several claims, all of which centered on
Plaintiff’s perceived right to a share of the proceeds from the sale of the home.
Defendant counterclaimed, essentially contending Plaintiff has no right to the Michigan
home and that Plaintiff acted wrongfully in filing the notice of lis pendens which stopped
the sale and by removing fixtures and otherwise damaging the home. Following cross
motions for partial summary judgment, the Court limited Plaintiff’s claims to:
Count IV (Conversion)
Count V (Unjust Enrichment)
and Defendant’s Claims to:
Count II (Slander of Title)
Count III (Tortious Interference)
See Memorandum and Order, Doc. 43. Particular to plaintiff’s claims, the Court said:
. . . summary judgment is GRANTED to Defendant on the quiet title counterclaim
and the entirety of Plaintiff’s complaint arising out of anything to do with
the sale of the California home. Plaintiff’s claim to equity in the Michigan
home remains; it is limited, however, to the net proceeds of the sale under
an unjust enrichment theory (Count V).

5

(Doc. 43 at p. 2.) (emphasis added).
Plaintiff moved for partial reconsideration. (Doc. 45). The Court denied the
motion and directed Plaintiff to file a second amended complaint. The Court explained:
It is not clear from a read of the first amended complaint (Doc 11) the extent that
the alternative theories apply to her claim to the equity in the Michigan home. The
problem is that Plaintiff's complaint is replete with claims to the title to the
Michigan home, as well as issues related to the California home, which have
been dismissed. As such, reconsideration is DENIED. However, Plaintiff is
given leave to file a second amended complaint within 30 days limited to
her right to the proceeds of the sale of the Michigan home over security
interests and outstanding taxes under alternative theories including unjust
enrichment.
(Doc. 46) (emphasis added).
Thereafter, on July 8, 2014, Plaintiff filed a Second Amended Complaint (Doc.
47), asserting the following claims:
Count I - Breach of Contract
Count II - Constructive Trust
Count III - Breach of Fiduciary Duties
Count IV - Conversion
Count V - Unjust Enrichment
Count VI - Fraud
Defendant then filed an amended answer and counterclaim, adding a claim for
conversion arising out of Plaintiff’s removal of fixtures from the home. (Doc. 50).
Defendant moved for partial dismissal of the Second Amended Complaint
(Doc. 49), seeking to dismiss Counts II, III, and VI, essentially arguing that these
claims, which were also raised in the Amended Complaint, were dismissed by the

6

Court’s order limiting plaintiff’s claims. The Court agreed and granted the motion in
an order dated December 12, 2014 (Doc. 62). This left the following claims by
Plaintiff:
Count I - Breach of Contract
Count IV - Conversion (relating to jewelry that Plaintiff says is
hers and defendant wrongfully possesses)
Count V - Unjust Enrichment
In the December 12, 2014 order, the Court said the following:
As to both parties’ claims regarding the sale of the Michigan home, the case
will proceed as follows:
1. The Michigan home shall be sold.
2. Third party claims, if any, shall be paid.
3. The remaining proceeds will be the subject of an accounting which
will determine (1) defendant’s right to reimbursement as stated in the
Reimbursement Motion, and (2) plaintiff’s equitable right to a share of
the remaining proceeds.
(Doc. 62 at p. 3-4).
In a later order, the Court said:
...Defendant may file a motion for summary judgment on Plaintiff’s breach of
contract and unjust enrichment claims at any time. However, the better course
is to sell the home before filing any motion in light of the fact that Plaintiff is
limited to only an equitable right to the share of its proceeds. As to Plaintiff’s
conversion claim, Plaintiff shall file an itemized statement of the jewelry and its
estimated value within ten (10) days of this order.
(Doc. 66 at p. 3).
Unfortunately, neither party took heed of the Court’s orders. Defendant did not
wait until the home was sold and the proceeds subject to an accounting. Instead,
Defendant moved for summary judgment on Plaintiff’s breach of contract and unjust
enrichment claims. Defendant also seeks summary judgment on his conversion
7

claim.
Plaintiff has moved for summary judgment on Defendant’s claims for slander
of title and tortious interference claims as well as his conversion claim. Defendant
responds that not only should Plaintiff’s motion be denied but that he, Defendant, is
entitled to summary judgment (although Defendant did not separately move for
summary judgment) on his claims.
The Court is constrained to say that the way in which the parties have litigated
this case from the over pleading and over briefing leaves little to be desired. At the
end of the day, resolving these motions leaves the parties in almost the same place;
neither wins.
III. Summary Judgment
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A moving party may meet that burden “by
‘showing’ – that is, pointing out to the district court -- that there is an absence of
evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). Rule 56 expressly provides that:
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
8

Fed. R. Civ. P. 56(c)(1). The Rule also provides the consequences of failing to
properly support or address a fact:
If a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by Rule 56(c), the
court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials –
including the facts considered undisputed – show that the movant is
entitled to it; or
(4) issue any other appropriate order.
Fed. R. Civ. P. 56(e). “The court need consider only the cited materials, but it may
consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
When the moving party has met its burden under Rule 56, “its opponent must
do more than simply show that there is some metaphysical doubt as to the material
facts.” Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). Ultimately a district court must determine whether the record as a whole
presents a genuine issue of material fact, id. at 587, drawing “all justifiable inferences
in the light most favorable to the non-moving party,” Hager v. Pike County Bd. Of
Education, 286 F.3d 366, 370 (6th Cir. 2002).
IV. Defendant’s Motion
Defendant has moved for summary judgment on Plaintiff’s breach of contract
and unjust enrichment claims. Defendant says that summary judgment is proper
because both claims arise out of the sale of the California home which the Court has
previously ruled Plaintiff cannot pursue. Defendant also says they fail on the merits.
9

Defendant also seeks summary judgment on his claim for conversion which is
based on Plaintiff’s removal of fixtures from the Michigan home.
Defendant has not moved for summary judgment on Plaintiff’s conversion
claim regarding jewelry that Plaintiff gave to Defendant for safekeeping which
apparently has not been returned.
A. Plaintiff’s Breach of Contract and Unjust Enrichment Claims as Based on
California Home
Both Plaintiff’s breach of contract claim and unjust enrichment claim are
grounded on the assertion that she “expend[ed] substantial sums to improve the
home…” At deposition, Plaintiff testified that all of these alleged improvements which
form the basis of her claims were paid for with funds from the sale of the California
home. (Defendant’s Ex. 1, Plaintiff’s Deposition at pp. 120-21). Plaintiff testified as
follows:
QUESTION: Where did the money come from for making these improvements
identified in Exhibit 2, paragraph 44?
PLAINTIFF: From monies that Mr. Armand Grant was holding for us from the
sale of the home.
QUESTION: So you’re claiming that Armand Grant paid for those
improvements with funds that belonged to you?
PLAINTIFF: Yes.
(Ex. 1, p. 105).
...

10

QUESTION: So your testimony is that Armand made no investment into the
Michigan property, correct?
PLAINTIFF: Correct.
QUESTION: On what basis do you state that?
PLAINTIFF: Because we made the improvements with the money from the
sale of the California home.
(Ex. 1, p. 120).
As noted above, the Court previously held that Plaintiff is barred from pursuing
any claim “arising out of anything to do with the sale of the California home.” This
included any claims based upon the proceeds from the sale of the California home.
As a result of Plaintiff’s testimony, it is clear that her claim of detrimental
reliance in her breach of contract claim and her claim for unjust enrichment are
premised upon the funds from the sale of the California home being used to pay for
the subject improvements. The Court has already ruled that Plaintiff is barred from
pursuing any claim “arising out of anything to do with the sale of the California home”
(Doc. 43), therefore, Plaintiff’s breach of contract and unjust enrichment claims must
be dismissed.
B. Additional Reasons Plaintiff’s Claims Fail
Putting aside Plaintiff’s deposition testimony, in the Second Amended
Complaint Plaintiff asserts a breach of contract claim based upon the allegation that
she detrimentally relied on an alleged promise by Defendant to hold the equity in the

11

Michigan home for her and Michael Grant’s benefit and has suffered damages.
While styled a breach of contract claim, it is more accurately called a
promissory estoppel claim and the parties have analyzed it as such. The elements of
a promissory estoppel claim consist of (1) a promise (2) that the promisor should
reasonably have expected to induce action of a definite and substantial character on
the part of the promisee and (3) that, in fact, produced reliance or forbearance of that
nature (4) in circumstances requiring enforcement of the promise if injustice is to be
avoided. Zaremba Equip, Inc v. Harco Nat’l Ins Co, 280 Mich App 16, 41 (2008). “A
promise is a manifestation of intention to act or refrain from acting in a specific way,
so made as to justify a promise in understanding that a commitment has been made.”
State Bank of Standish v. Curry, 442 Mich 76, 84-85 (1993). Promissory estoppel
requires an actual, clear, and definite promise, and the reliance on it must be
reasonable. Ypsilanti Twp v. Gen Motors Corp., 201 Mich App 128, 134 (1993).
Further, “reliance is reasonable only if it is induced by an actual promise.” State
Bank, 442 Mich at 84.
Plaintiff has not satisfied these elements sufficient to survive summary
judgment. First, Plaintiff cannot state with any clarity or definiteness what
Defendant’s promise was to her. In the Second Amended Complaint, Plaintiff states
that the promise was to “hold the equity in the Michigan home for [her and Michael’s]
benefit.” (Doc. 47 at ¶¶12 and 21). In the First Amended Complaint, Plaintiff stated
that Defendant promised to hold both the title to the Michigan home and its equity for
her and Michael. (Doc. 11 at ¶¶13, 18, 20 and other paragraphs)(Doc. 11) In

12

Plaintiff’s deposition, she testified that “it was understood that the home was being
purchased by us through Armand for us to
keep.” (Defendant’s Ex. 1, p. 97). In her affidavit, which was attached in support of
her summary judgment motion, Plaintiff states that “Defendant, Michael and I agreed
that Defendant would hold in his name title to the Michigan Home for our benefit
using some of the $1,100,000 of the net sales proceeds from the sale of the
California House.” (Defendant’s Exhibit 28, Plaintiff’s Affidavit, ¶7, Ex. 28). Adding
to the confusion, Plaintiff’s Second Amended Complaint references two
correspondences from Defendant that she says “confirmed” the existence and terms
of the alleged promise. (Doc. 47 at ¶21)(Doc. 47). In Plaintiff’s Summary Judgment
Motion, she identified these two correspondences/emails. The emails, referenced as
Exhibits F and G, are dated January 9, 2013 and January 12, 2013. In the January
9, 2013 email, which appears to be a settlement offer to persuade Plaintiff to
voluntarily leave the house so that it could be sold, Defendant wrote to Plaintiff’s
attorney:
Mr. Lippitt, since you are the attorney for Mrs. Grant, I am advising you that I
will demand that your client vacate the premises listed in the subject portion of
this email by no later than March 1, 2013. I am offering to guarantee one year
rental on an apartment in as much as I want to be certain my grand children
(sic.) are properly housed.
I will reimburse myself for all money advanced by me from the proceeds of the
sale of the house and I intend to send the remaining funds equally divided
between Michael and Adrienne.
I trust that Adrienne will do what ever (sic.) is necessary to comply with my
demands as it will benefit her financially.
Regards,
Armand Grant
13

(the “January 9th Email”)
In the January 12, 2013 email, which also intended to be a settlement offer to
persuade Plaintiff to leave the Michigan home so that it could be sold,
Defendant wrote to Plaintiff:
Adrienne, you are making a serious error in judgment by not allowing your
house to be show so it can be sold. As I stated in my e-mail to your attorney
on Wednesday, I will guarantee a lease for 1 year on an apartment. After the
sale, I will reimburse my self (sic.) of the money I advanced and split the
remainder equally between you and Michael.
I trust that you will do the right thing. There is a sizeable equity in the property.
Mr. Brooks has advised me that he has had multiple requests for showing and
you have not cooperated in any manner.
Regards,
Armand Grant
(the “January 12th Email”)
These two emails, do not establish that Defendant promised Plaintiff the equity
in the Michigan home. Instead, they show that Defendant wanted Plaintiff to leave
the house so that he could sell it and that he expected to be reimbursed for all of the
money he advance toward the purchase of the Michigan home and all of his other out
of pocket expenses. At best, Defendant was willing to split the net proceeds from the
sale of the home after he reimbursed himself for all of his out of pocket expenses.
Further, these emails indicate that the proposal was contingent upon her leaving the
home by March 1, 2013. Plaintiff failed to move out by the required date. Indeed,
Defendant commenced eviction proceedings which culminated in a judgment of

14

possession on April 25, 2013.
Due to the changing nature of the promise, there is no evidence that Plaintiff
relied upon any promise. As previously discussed, it is unclear what the terms were
of the “promise.” The inconsistency of the terms of the promise precludes a finding
that she relied upon the promise of the equity in the home, especially since Plaintiff
represented contented that she thought she was promised title to the home.
Further, in order to establish the last element of a promissory estoppel,
Plaintiff must establish that she detrimentally relied upon the promise. Powers v.
Peoples Community Hosp Authority, 183 Mich App 550, 554 (1990). In ¶24 of
Plaintiff’s Second Amended Complaint, Plaintiff states that Defendant’s promise
“induce[d] [her] to live with Michael in the home and expend substantial sums to
improve the home, e.g., installing new cabinetry, removing old and installing new
flooring, finishing the basement, installing landscaping, and installing new water
heaters and softeners.” (Doc. 47). The investment in these improvements cannot
serve to establish detrimental reliance. Plaintiff benefitted from each and every
improvement, and she sold many of the improvements, retaining the proceeds from
the sale. Moreover, there is no evidence that Plaintiff actually paid for the
improvements. Nor does Plaintiff say that she would not have made these
improvements but for Defendant’s promise. Indeed, the promise, contained in the
emails, occurred long after the improvements were made.
Finally, Plaintiff cannot satisfy the last element of promissory estoppel, i.e.,
enforcement of the promise is necessary if injustice is to be avoided. See Zaramba,
15

280 Mich App at 21. As Defendant notes:
1. Defendant funded all of the improvements to the Michigan home. All of the
improvements to the Michigan Home were paid for with Defendant’s credit
card. (Defendant’s Ex. 7, Credit Card Receipts)
2. Plaintiff received the full benefit of the improvements to the Michigan home
for approximately eight years. She lived with and enjoyed the improvements
made to the home.
3. Plaintiff lived in the Michigan home rent free as Defendant not only paid the
$284,932.15 down payment for the purchase of the house, but he also paid all
of the mortgage payments, the property taxes, the homeowner association
dues, and most of the utilities.
4. Plaintiff received more in cash from Defendant while she lived in the
Michigan home than the money she allegedly paid for the improvements.
Defendant sent Plaintiff and her husband over $212,000 in checks. See
Defendant’s Ex. 6 and Ex. 8.
5. Plaintiff removed many of the improvements from the Michigan home,
including fixtures, when she left, then she sold the improvements and kept all
of the sales proceeds. As Plaintiff explained at deposition:
QUESTION: Aside from the movie projector and chairs in the theater
room, what else did you remove from the Michigan
home?
PLAINTIFF: I was awarded all of the contents inside the home. So that
meant I was able to take the appliances, whatever furniture, fireplace,
any type of item I wanted, including my fixtures.
QUESTION: What do you mean by take the fireplace?
PLAINTIFF: We had a custom mantel made for the fireplace in the great
room.

16

QUESTION: You took that?
PLAINTIFF: I was awarded it.
QUESTION: Who were you awarded it by?
PLAINTIFF: By the judge in my divorce case.
QUESTION: When did you take the mantel?
PLAINTIFF: Everything was removed during my garage sale. And I’m
sorry. I forget. And after when I was moving out, I had a very short
span of time.
QUESTION: When were you moving out?
PLAINTIFF: I had, I believe, less than two weeks to have to find a place
and somehow secure money in order to get out of the home, because
Michael Grant still hadn’t paid a penny of child support and we had no
money?
QUESTION: Approximately what date did you move out of the home,
the Michigan home?
PLAINTIFF: It was after May?
QUESTION: No, no. It was in May. I was evicted in May. So I had to leave in
May.
(Defendant’s Ex. 1, pp. 114-115)
There is no injustice to Plaintiff if the Court refrained from enforcing the
promise. Plaintiff simply cannot prevail on her breach of contract claim. No
reasonable juror could conclude otherwise.
17

Regarding unjust enrichment, “[w]hether a claim for unjust enrichment can be
maintained is a question of law…” Karaus v Bank of New York Mellon, 300 Mich App
9, 22 (2006). Unjust enrichment is an equitable doctrine. Morris Pumps v Centerline
Piping, Inc, 273 Mich App 187, 193 (2006). To prevent unjust enrichment, the law
will imply a contract only where the defendant has been
inequitably enriched at the expense of the plaintiff. Id. at 195. “A claim for unjust
enrichment requires the complaining party to establish (1) the receipt of a benefit
by the other party from the complaining party and (2) an inequity resulting to the
complaining party because of the retention of the benefit by the other party.”
Karaus, 300 Mich App at 22-23.
Plaintiff has failed to establish the necessary elements of an unjust enrichment
claim. Notably, she cannot establish that she conferred any benefit on Defendant.
Plaintiff contends that she has unjustly enriched Defendant with the improvements
she made to the home and as a result she is entitled to reimbursement for her
expenses. In ¶50 of the Second Amended Complaint, Plaintiff states as the basis of
her unjust enrichment claim as follows:
Moreover, and as a consequence of Defendant representing and agreeing that
he was holding the equity to the Michigan Home for the benefit of Plaintiff and
Michael, Plaintiff relied thereon to her detriment, e.g. Plaintiff expended
substantial sums to improve the home. This included, among other things,
installing new cabinetry, removing old and installing new flooring, finishing the
basement, installing landscaping and installing new water heaters and
softeners.
(Doc. 47).
18

Contrary to Plaintiff’s assertions, Plaintiff has no evidence that she paid for any
of the improvements referenced in ¶50 of her Second Amended Complaint. Even
assuming Plaintiff did pay for even some of them, she cannot demonstrate that
Defendant benefitted from the improvements. Plaintiff removed and sold most, if not
all, of the improvements before she left. Defendant did not get the benefit of any of
the improvements made. In fact, Defendant had to spend additional funds to repair
the home and replace many of the improvements. In short, there is no basis for an
unjust enrichment claim.
C. Defendant’s Conversion Claim
Defendant’s claim is based on Plaintiff removing and selling appliances and
fixtures that Defendant paid for and therefore owned. Common-law conversion is
defined as “any distinct act of domain wrongfully exerted over another’s personal
property in denial of or inconsistent with the rights therein.” Lawsuit Fin, LLC v Curry,
261 Mich App 579, 591 (2004). The Michigan statute on conversion is clear. A person
damaged as a result of “[a]nother person’s stealing or embezzling property or
converting property to the other person’s own use” is entitled to actual damages for
the converted property plus “3 times the amount of actual damages sustained, plus
costs and reasonable attorney fees.” M.C.L. § 600.2919a. “The remedy provided by
this section is in addition to any other right or remedy the person may have at law or
otherwise.” Id.
Plaintiff has admitted to the removal of the appliances and fixtures in her
deposition testimony. Although Plaintiff believed they belonged to her as she was
19

awarded the contents of the home in her divorce judgment, this ignores that
Defendant, not Plaintiff, owned the Michigan home. Defendant properly asserted his
rights and obtained a state court order directing Plaintiff not to remove any more
fixtures. On May 20, 2013, the 52-3 District Court entered an order confirming
Defendant’s ownership of the appliances, and specifically enjoining Plaintiff from
“causing further damage to the Subject Property” and “from removing any fixtures
from the Subject Property.” (Defendant’s Ex. 14). Despite this order, Plaintiff
continued selling the appliances and fixtures at the home. Plaintiff had no right to
remove the contents and particularly the fixtures. Defendant is entitled to summary
judgment on his conversion claim. Although Defendant has put forth evidence of
damages, which comprises the cost to replace the appliances ($34,109), the Court
defers ruling on damages.
V. Plaintiff’s Motion for Summary Judgment
Plaintiff seeks summary judgment on Defendant’s claims for slander of title
(Count I), tortious interference (Count II), and conversion (Count III).
Defendant’s slander of title and tortious interference claims are based on the
assertion that Plaintiff had no right to file the notice of lis pendens and by doing so,
slandered the title to the home and tortiously interfered with the pending sale of the
home.
A notice of lis pendens is the “‘notice, recorded in the chain of title to real
property, . . . to warn all persons that certain property is the subject matter of
litigation. . . .’” Ruby & Assocs., P.C. v. Shore Fin. Servs., 276 Mich. App. 110, 113
20

(2007), vacated in part on other grounds, 480 Mich. 1107 (2008) (quoting Black’s
Law Dictionary (8th ed.), p. 950). The purpose of a notice of lis pendens is “‘. . . to
warn persons who deal with property while it is in litigation that they are charged with
notice of the rights of their vendor’s antagonist. . . .’” Id. (quoting Backowski v.
Solecki, 112 Mich. App. 401, 412 (1982)). Thus, purchasers are aware that they take
the property “subject to the outcome of the litigation.” Id. (citing MCL 565.25;
Provident Mut. Life Ins. Co. v. Vinton Co., 282 Mich. 84, 85–87 (1937); Hedler v.
Manning, 252 Mich. 195, 196–97 (1930)).
To prevail on a claim for slander of title, Defendant must show that Plaintiff
maliciously published false statements that disparaged the title to the Michigan home
and that it caused Defendant to suffer special damages. B&B Inv. Group v. Gitler,
229 Mich. App. 1, 8 (1998).
While the Court has now concluded that Plaintiff has no equitable right to the
home inasmuch as it has granted summary judgment on Plaintiff’s breach of contract
and unjust enrichment claims, it does not follow that the filing of the notice of lis
pendens was itself improper. Plaintiff, albeit in error, believed that she had a some
right to the home. Although Plaintiff ultimately does not, the notice of lis pendens
was simply a notice of pending litigation. It was not substantively determinative. The
notice was not a false statement because the home was the subject of litigation at
the time the notice was filed. Moreover, while Defendant believes Plaintiff acted with
malice, the record does not support a finding. Plaintiff acted on the advice of counsel
in filing the notice and on a mistaken belief that she had a right to the Michigan

21

home. Her actions may be characterized as fanciful or obstructionist but in the
Court’s view do not rise to the level of malicious. No reasonable juror could conclude
otherwise. As such, Plaintiff is entitled to summary judgment on Defendant’s slander
of title claim.
Regarding tortious interference, which Defendant says he alternatively plead
as tortious interference with a business relationship and a business expectancy, the
same result obtains. “The elements of tortious interference with a contractual
relationship are (1) a contract, (2) a breach, and (3) instigation of the breach
without justification by the defendant.” Jim-Bob, Inc v Mehling, 178 Mich App 71,
96-97 (1989). The court of appeals also explained that “[one] who alleges tortious
interference with a contractual or business relationship must allege the intentional
doing of a per se wrongful act or the doing of a lawful act with malice and unjustified
in law for the purpose of invading the contractual rights of business relationship of
another." Id. at 96, quoting Formall, Inc v Community Nat’l Bank of Pontiac, 166
Mich App 772, 779 (1988).
Again, to the extent Defendant says the filing of the notice of lis pendens was
a tortious act, he cannot prevail. The filing itself was not improper even though it has
now been determined that Plaintiff has no rights, legal or equitable, in the home. As
to Plaintiff removing the fixtures, which she claimed she had a right to under the
judgment of divorce, it cannot be said as a matter of law that these actions resulted in
the prospective buyer backing out of the sale. Notably, the buyer asked for a lower
price, thereby indicating a deal could still be made, albeit on less favorable terms to
22

Defendant. Moreover, Plaintiff’s actions are accounted for in granting Defendant
summary judgment on his claim for conversion.
VI. Conclusion
For the reasons stated above, plaintiff’s motion for partial summary judgment
is GRANTED IN PART AND DENIED IN PART. Defendant’s claims for slander of
title and tortious interference are DISMISSED.
Defendant’s motion for partial summary judgment is GRANTED. Plaintiff’s
claims for breach of contract and unjust enrichment are DISMISSED. Plaintiff is
liable on Defendant’s claim for conversion.
The case continues on the following claims/issues:
1.

Damages on Defendant’s claim for conversion

2.

Plaintiff’s claim for conversion, both liability and damages

SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: July 15, 2016
Detroit, Michigan

23