Maria T Prose v. Thomas M Prose ( 2021 )

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
MARIA T. PROSE, UNPUBLISHED
June 10, 2021
Plaintiff-Appellant,
V No. 351776
Wayne Circuit Court
THOMAS M. PROSE, LC No. 15-004686-CZ
Defendant-Appellee.
Before: REDFORD, P.J., BORRELLO and TUKEL, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s entry of the parties’ stipulated order that
contained a final order in her civil action entered in a consolidated divorce and civil action.1 In
this appeal, plaintiff challenges the trial court’s denial of her motion to file a second amended
complaint in her civil action to add a party, General Medicine, P.C. (General Medicine), and add
1
The parties previously sought and were granted leave to appeal the trial court’s opinion and order
that granted defendant summary disposition of plaintiff’s fraud claims related to the parties’
previous divorce proceedings but also granted plaintiff leave to file an amended complaint. This
Court affirmed in part, vacated in part, and remanded the case for further proceedings. See Prose
v Prose, unpublished per curiam opinion of the Court of Appeals, issued September 7, 2017
(Docket Nos. 330886 and 331265), lv den 501 Mich 1081 (2018). Plaintiff also sought leave to
appeal to this Court from the trial court’s April 9, 2018 order entered after remand in which the
trial court denied plaintiff’s motion to file a second amended complaint in her civil action and
denied her motion to enforce an order entered by the trial court in the divorce action before entry
of its final judgment of divorce. This Court denied leave for failure to persuade the Court of the
need for immediate consideration. Prose v Prose, unpublished order of the Court of Appeals,
entered September 27, 2018 (Docket No. 343568).
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claims against defendant and General Medicine of conversion and unjust enrichment respecting
marital property to which she asserts entitlement as part of the divorce.2 We affirm.
I. BACKGROUND FACTS
The parties married in the 1980s and during their marriage owned and operated General
Medicine, a company that provided medical services. The parties commenced a divorce action
during 2010 that resulted in the trial court’s entry of a judgment of divorce on March 22, 2011.
On April 7, 2015, plaintiff filed a civil action against defendant alleging that through fraud and
material misrepresentations he induced plaintiff’s consent to provisions in the judgment of divorce
that resulted in an improper marital estate property division related to anticipated proceeds from
business litigation between General Medicine and Horizon/CMS Health Care Corporation
(Horizon) for breach of a services agreement. That litigation started in 1996 when General
Medicine sued Horizon in the United States District Court for the Eastern District of Michigan. In
April 2004, General Medicine, Horizon, and Horizon’s then parent company, Meadowbrook
Healthcare, Inc., entered a settlement agreement that required General Medicine and Horizon to
enter a consent judgment. The settlement agreement did not release Horizon from liability, but
General Medicine agreed to not bring another suit against Horizon, or otherwise execute the
forthcoming consent judgment, in exchange for $300,000. Horizon and Meadowbrook also agreed
to transfer “any assets or property” to General Medicine that they received “as a result of any
action” General Medicine brought against “HealthSouth Corporation to execute on the Consent
Judgment.” During May 2004, the federal district court entered a consent judgment against
Horizon for $376 million dollars and ordered that General Medicine could use available legal
means to execute on the judgment. A few months later General Medicine filed a fraudulent-
transfer complaint against HealthSouth Corporation in Alabama alleging that it obtained a
judgment against Horizon that had not been satisfied, and that HealthSouth, while Horizon’s sole
shareholder, directed Horizon to fraudulently transfer its assets to HealthSouth to frustrate General
Medicine and Horizon’s other creditors.
In September 2008, General Medicine filed an amended complaint asking the Alabama
trial court to pierce HealthSouth’s corporate veil on the ground that it used its corporate form to
perpetrate a fraud on General Medicine and HealthSouth’s other creditors. During May 2009, the
Michigan federal district court granted nonparty HealthSouth’s motion to set aside the consent
judgment on the ground that General Medicine and Horizon committed a fraud on the court by
failing to disclose the terms of their settlement agreement, which included that General Medicine
2
Plaintiff previously sought to appeal the trial court’s denial of her motion in the divorce action to
enforce or reopen the judgment of divorce. This Court dismissed that part of her claim of appeal
for lack of jurisdiction because the order from which she claimed her appeal is not a final order in
the divorce action. Prose v Prose, unpublished order of the Court of Appeals, entered December
19, 2019 (Docket No. 351776).
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would collect only $300,000 of the $376 million judgment from Horizon.3 General Medicine
appealed to the United States Sixth Circuit Court of Appeals.
The parties’ divorce action commenced in January 2010. On August 17, 2010, the divorce
court entered a preliminary order that covered matters which included payment by defendant of
overdue support, the transfer of a car’s title to plaintiff, possession of the marital home during the
pendency of the divorce, defendant’s withdrawal of money from 529 college savings accounts in
violation of an injunction previously entered by the court, the liquidation of an investment account
to pay an existing credit facility, and management of funds if General Medicine obtained new
credit facility approval. The order also permitted defendant and General Medicine to abandon the
Horizon litigation with the proviso that “[i]f any benefits of any kind are ever received relative to
that claim, Plaintiff is entitled to 50% of the value of same.”
In March 2011, the divorce court entered the judgment of divorce which ordered defendant
to pay plaintiff, via wire transfer, an amount of cash; and the judgment further obligated defendant
to pay plaintiff monthly spousal support with specified collateral securing defendant’s obligations,
and defined remedies should defendant default on his various obligations. Relevant to this case,
under the terms of the judgment of divorce, defendant became the sole owner of General Medicine,
and to the extent that it or its related entities ever recovered anything from the HealthSouth
litigation, defendant would become the sole owner of such recovery free and clear of all claims by
plaintiff. The judgment of divorce provided that upon its execution all rights and claims between
the parties except for fraud pertaining to the negotiation and enforcement of the judgment were
fully satisfied.
Almost a year after the entry of the judgment of divorce, the United States Sixth Circuit
Court of Appeals issued an opinion that reinstated the Horizon consent judgment. Gen Med, PC
v Horizon/CMS Health Care Corp, 475 Fed Appx 65, 66 (CA 6, 2012). Three years later, the
Alabama trial court entered a joint stipulation of dismissal with prejudice of the parties’ respective
claims, and, according to defendant’s filings, General Medicine executed a satisfaction and release
of the Horizon consent judgment during that month.
Plaintiff moved in the divorce court in April 2015 to enforce the judgment of divorce as it
pertained to certain sculptures and other pieces of personal property that went missing during the
divorce action. She also filed this civil action in the trial court claiming fraudulent inducement,
fraudulent misrepresentation, innocent misrepresentation, and silent fraud against defendant on the
ground that he concealed and misrepresented the status and prospects of the Horizon litigation and
the HealthSouth litigation during the divorce action. Eventually, plaintiff withdrew her motion to
3
Gen Med PC v Horizon/CMS Health Care Corp, unpublished opinion and order of the United
States District Court for the Eastern District of Michigan, issued May 21, 2009 (Case No. 96-
72624), pp 3-6. Then in February 2010, the federal district court entered a clarifying order and
opinion explaining that the parties’ underlying settlement agreement had been performed even
though the consent judgment had been set aside. Gen Med, PC v Horizon/CMS Healthcare Corp,
unpublished opinion and order of the United States District Court for the Eastern District of
Michigan, issued February 25, 2010 (Case No. 96-72624), pp 1-2.
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enforce the judgment of divorce, the trial court granted defendant summary disposition of
plaintiff’s fraud claims, and permitted plaintiff to file an amended complaint that raised claims
concerning some missing sculptures.4
Both plaintiff and defendant sought and were granted leave to appeal the trial court’s
orders: defendant appealed the order permitting plaintiff to amend her complaint; plaintiff
appealed the order granting defendant summary disposition of her claims. This Court affirmed the
trial court’s grant of defendant’s motion for summary disposition, and affirmed in part and vacated
in part the trial court’s grant of plaintiff’s motion to file an amended complaint. Prose, unpublished
per curiam opinion of the Court of Appeals, issued September 7, 2017 (Docket Nos. 330886 and
331265).
Then, in November 2017, plaintiff filed a motion in the divorce court requesting
enforcement of that court’s August 2010 prejudgment order that stated that she would be entitled
to 50% of any recovery from the Horizon litigation on the ground that the HealthSouth litigation
primarily constituted an extension of the Horizon litigation. In her civil action, plaintiff moved
for leave to file a second amended complaint to add General Medicine as a defendant, and to add
claims of unjust enrichment and conversion against General Medicine and defendant based on
entitlement to 50% of the proceeds from the settlement in the HealthSouth litigation under the
August 2010 order in the divorce action.
The trial court entered an opinion and order on April 9, 2018, in the consolidated divorce
and civil actions denying plaintiff’s motion to enforce the August 2010 order and judgment of
divorce or alternatively to reopen the divorce property settlement, and denying plaintiff’s motion
for leave to file a second amended complaint in the civil action. The trial court denied plaintiff’s
motion to enforce on the grounds that the actual language of its August 2010 preliminarily order,
entered before the judgment of divorce, provided plaintiff only the entitlement to make a claim to
any proceeds potentially recovered from the Horizon litigation, but explained that entry of the
judgment of divorce superseded the August 2010 temporary order.
The trial court further explained, among other things, that under the express terms of the
judgment of divorce, plaintiff released all claims to any proceeds from the HealthSouth litigation
and all claims against General Medicine. The court ruled that plaintiff’s motion to amend based
upon her contention regarding the August 2010 order, therefore, would be futile. In November
2019, the trial court entered a stipulated settlement order that dismissed with prejudice plaintiff’s
claims in the civil action regarding the missing sculptures. The order also provided that plaintiff’s
claims “involving the Horizon judgment” were not settled and that plaintiff was “free to pursue an
appeal of right as to those issues.”
II. STANDARDS OF REVIEW
This Court reviews a trial court’s decision regarding a plaintiff’s motion to amend the
pleadings for an abuse of discretion. Sanders v Perfecting Church, 303 Mich App 1, 8-9; 840
NW2d 401 (2013). “An abuse of discretion occurs when the decision is outside the range of
4
Later, the trial court consolidated the divorce action and the civil action.
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principled outcomes.” Hardrick v Auto Club Ins Ass’n, 294 Mich App 651, 659-660; 819 NW2d
28 (2011). “A court by definition abuses its discretion when it makes an error of law.” In re
Ingham Co Treasurer for Foreclosure, 331 Mich App 74, 78; 951 NW2d 85 (2020) (quotation
marks and citation omitted). “The trial court’s legal conclusions are, of course, reviewed de novo.”
Essexville v Carrollton Concrete Mix, Inc, 259 Mich App 257, 265; 673 NW2d 815 (2003).
“Interpreting the meaning of a court order involves questions of law” reviewed de novo on appeal.
Silberstein v Pro-Golf of America, Inc, 278 Mich App 446, 460; 750 NW2d 615 (2008). Whether
the law-of-the-case doctrine applies is a question of law that this Court reviews de novo. Kasben
v Hoffman, 278 Mich App 466, 470; 751 NW2d 520 (2008). While the question whether a party
has been unjustly enriched is generally one of fact, “whether a claim for unjust enrichment can be
maintained is a question of law” reviewed de novo. Morris Pumps v Centerline Piping, Inc, 273
Mich App 187, 193; 729 NW2d 898 (2006).
III. ANALYSIS
Plaintiff argues that the trial court erred by denying her motion for leave to file a second
amended complaint. We disagree.
“The rules pertaining to the amendment of pleadings are designed to facilitate amendment
except when prejudice to the opposing party would result; amendment is generally a matter of right
rather than grace.” PT Today, Inc v Comm’r of Office of Fin & Ins Servs, 270 Mich App 110, 143;
715 NW2d 398 (2006). Under MCR 2.118(A)(2), a “trial court should freely grant leave to amend
a complaint when justice so requires.” Sanders, 303 Mich App at 9. “Ordinarily, a motion to
amend a complaint should be granted unless the amendment would be futile.” Id. “An amendment
is futile if it merely restates the allegations already made or adds allegations that still fail to state
a claim.” Lane v KinderCare Learning Ctrs, Inc, 231 Mich App 689, 697; 588 NW2d 715 (1998).
“Conversion, both at common law and under the statute, is defined as any distinct act of
domain wrongfully exerted over another’s personal property in denial of or inconsistent with the
rights therein.” Aroma Wines & Equip, Inc v Columbian Distrib Servs, Inc, 303 Mich App 441,
447; 844 NW2d 727 (2013) (quotation marks and citation omitted). “Conversion may occur when
a party properly in possession of property uses it in an improper way, for an improper purpose, or
by delivering it without authorization to a third party.” Dep’t of Agriculture v Appletree Mktg,
LLC, 485 Mich 1, 14; 779 NW2d 237 (2010).
MCL 600.2919a codified remedies for conversion as follows:
(1) A person damaged as a result of either or both of the following may
recover 3 times the amount of actual damages sustained, plus costs and reasonable
attorney fees:
(a) Another person’s stealing or embezzling property or converting property
to the other person’s own use.
(b) Another person’s buying, receiving, possessing, concealing, or aiding in
the concealment of stolen, embezzled, or converted property when the person
buying, receiving, possessing, concealing, or aiding in the concealment of stolen,
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embezzled, or converted property knew that the property was stolen, embezzled, or
converted.
(2) The remedy provided by this section is in addition to any other right or
remedy the person may have at law or otherwise.
“To support an action for conversion of money, the defendant must have an obligation to
return the specific money entrusted to his care.” Head v Phillips Camper Sales & Rental, Inc, 234
Mich App 94, 111; 593 NW2d 595 (1999). “The defendant must have obtained the money without
the owner’s consent to the creation of a debtor and creditor relationship.” Id. at 112 (quotation
marks and citation omitted). “Although an action cannot be maintained for conversion of money
unless there is an obligation on the part of the defendant to return the specific money entrusted to
his care, it is not necessary that the money should be specifically earmarked for its return.” Citizens
Ins Co of America v Delcamp Truck Ctr, Inc, 178 Mich App 570, 575; 444 NW2d 210 (1989)
(citation omitted).
“Unjust enrichment is defined as the unjust retention of money or benefits which in justice
and equity belong to another.” Tkachik v Mandeville, 487 Mich 38, 47-48; 790 NW2d 260 (2010)
(quotation marks and citation omitted). “A claim of 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 v Bank of New York Mellon, 300 Mich App 9, 22-23; 831 NW2d 897 (2012).
“Not all enrichment is unjust in nature, and the key to determining whether enrichment is
unjust is determining whether a party unjustly received and retained an independent benefit.” Id.
at 23. “No person is unjustly enriched unless the retention of the benefit would be unjust.” Buell
v Orion State Bank, 327 Mich 43, 56; 41 NW2d 472 (1950). “One is not unjustly enriched,
however, by retaining benefits involuntarily acquired which law and equity give him absolutely
without any obligation on his part to make restitution.” Id. (quotation marks and citation omitted).
“A ‘judgment’ is ‘[a] court’s final determination of the rights and obligations of the parties
in a case.’ ” Acorn Investment Co v Mich Basic Prop Ins Ass’n, 495 Mich 338, 351; 852 NW2d
22 (2014), quoting Black’s Law Dictionary (9th ed) (alteration in the original). Public policy
demands finality of litigation in family law to preserve surviving family structure. Staple v Staple,
241 Mich App 562, 565; 616 NW2d 219 (2000).
Plaintiff contends that in the trial court’s August 2010 order it awarded her 50% of any
proceeds from the Horizon litigation and that the judgment of divorce’s terms did not change that.
Plaintiff’s contention lacks merit. The August 2010 order provided that defendant and General
Medicine could abandon the Horizon litigation but if “any benefits of any kind are ever received
relative to that claim, Plaintiff is entitled to 50% of the value of same.” The parties’ March 2011
judgment of divorce, however, served as the final distribution of the marital assets and stated that,
to “the extent that General Medicine, P.C. or any of its related entities should ever recover anything
from the Health South litigation, Defendant shall become and be the sole and separate owner of
same, free and clear of all claims by Plaintiff.” Additionally, the judgment of divorce specified
that defendant would “be the sole and separate owner of” General Medicine “free and clear of any
claims by Plaintiff.” These provisions lack ambiguity.
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The judgment of divorce also contained the following merger provisions:
Except as otherwise provided in this Judgment of Divorce, the terms of this
Judgment of Divorce shall be in full satisfaction of all claims that either may have
in any property which the other owns or may own in the future or in which the other
may have an interest.
* * *
The contents of this Judgment of Divorce are made in full satisfaction of
any and all rights and claims of whatsoever kind or nature from the beginning of
time until the date of execution of this Judgment of Divorce, including but not
limited to contract, personal injury, and tort claims, which either party may claim
against the other, except for fraud pertaining to the negotiation and enforcement of
this Judgment of Divorce.
In September 2015, the trial court entered an order granting defendant’s motion for
summary disposition, and in an accompanying opinion the court twice characterized the August
2010 order as having “awarded” plaintiff half of the value of any benefits recovered from the
Horizon litigation. After this Court affirmed the trial court’s grant of summary disposition of
plaintiff’s fraud claims that concerned plaintiff’s prospective entitlement to the proceeds from the
HealthSouth litigation,5 plaintiff moved to enforce the divorce court’s August 2010 order, and also
moved for leave to file a second amended complaint in the trial court to add General Medicine as
a defendant and to assert claims of conversion and unjust enrichment. The court issued a
consolidated opinion and order that denied both of plaintiff’s motions.
In the divorce court portion of the consolidated opinion and order, the court denied
plaintiff’s motion to enforce the August 2010 order. The court explained that it committed an
unintentional linguistic error in its September 2015 opinion when it used the word “awarded”
rather than “entitled.” The court, relying on dictionary definitions, ruled that “entitled” in the
August 2010 order meant that plaintiff could “make a claim” for half of any recovery from the
Horizon litigation “without an accompanying analysis or judicial decree.” The court, therefore,
amended the September 2015 opinion to remove the word “awarded.” It also ruled that the
judgment of divorce extinguished plaintiff’s claim because the August 2010 order merely provided
temporary relief, whereas, the terms of the final judgment of divorce provided that plaintiff
released any claims she had against General Medicine.
Generally, the scope of a release is governed by the intent of the parties as expressed in the
release; if the text in the release is unambiguous, the parties’ intentions must be ascertained from
the plain, ordinary meaning of the language of the release. Rinke v Automotive Moulding Co, 226
Mich App 432, 435; 573 NW2d 344 (1997). In this case, the judgment of divorce lacks ambiguity,
particularly regarding the release of claims by plaintiff as to defendant and General Medicine.
Further, the parties were represented by counsel and by executing the document, the parties and
5
Prose, unpub op at 1.
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their respective counsel signified that they approved as to form and substance the terms of the
judgment of divorce.
In the trial court portion of the opinion and order, the court relied on the divorce court’s
analysis regarding the denial of plaintiff’s motion to enforce, 6 and ruled that plaintiff’s
amendments would be futile because the extinguishment of plaintiff’s right to make a claim for
50% of the Horizon litigation recovery meant that plaintiff lacked any property that could be
converted. Similarly, the court ruled that the judgment of divorce served essentially as a contract
between the parties, and plaintiff’s claim for unjust enrichment failed because the judgment of
divorce governed the ownership of General Medicine’s recovery from HealthSouth.
Plaintiff argues that the trial court erred when it relied on the divorce court’s ruling that its
August 2010 order only provided that plaintiff could make a claim for half of the value of any
recovery in the Horizon litigation. Plaintiff contends that in its August 2010 order, the divorce
court actually pronounced that she had absolute ownership of half of any recovery from the
Horizon litigation, and confirmed that pronouncement when the trial court used the term
“awarded” in its September 2015 opinion. Plaintiff also generally contends that the judgment of
divorce neither required her to relinquish her ownership of 50% of any recovery from the Horizon
litigation nor adjudicate her ownership in such recovery. The judgment of divorce’s marital
property disposition and release language, however, establishes quite the contrary.
Plaintiff also contends that defendant should be collaterally estopped from denying
plaintiff’s ownership of half of any recovery from the Horizon litigation because of the trial court’s
September 2015 opinion’s description of the August 2010 order. In support of her contention,
however, plaintiff merely cites a single decision of the Michigan Supreme Court along with a
parenthetical noting that the decision addresses the elements of collateral estoppel. “A party may
not merely announce his position and leave it to this Court to discover and rationalize the basis for
his claims, or give issues cursory treatment with little or no citation of supporting authority.” Wolfe
v Wayne-Westland Community Sch, 267 Mich App 130, 139; 703 NW2d 480 (2005) (quotation
marks and citation omitted). Courts “are not the research assistants of the litigants; the parties
have a duty to fully present their legal arguments to the court for its resolution of their dispute.”
Walters v Nadell, 481 Mich 377, 388; 751 NW2d 431 (2008). “If a party fails to adequately brief
a position, or support a claim with authority, it is abandoned.” MOSES, Inc v SEMCOG, 270 Mich
App 401, 417; 716 NW2d 278 (2006). We are not persuaded by plaintiff’s argument. Moreover,
in its September 2015 opinion, the trial court explained that it had inadvertently and incorrectly
characterized the nature of its August 2010 order and corrected its terminology to properly reflect
the actual legal status of the parties as set forth in the parties’ judgment of divorce. The trial court
did not err in this regard.
6
As discussed previously, this Court dismissed plaintiff’s appeal from the divorce action for lack
of jurisdiction. Prose v Prose, unpublished order of the Court of Appeals, entered December 19,
2019 (Docket No. 351776). The trial court explicitly relied on the divorce court’s denial of
plaintiff’s motion to enforce to support the denial of plaintiff’s motion for leave to file a second
amended complaint. Therefore, the divorce court’s denial of plaintiff’s motion to enforce is
relevant to this appeal to the extent that the trial court relied on the divorce court’s analysis.
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Plaintiff further argues that the court’s interpretation of the August 2010 order, and its
amendment of the September 2015 opinion, were contrary to the law-of-the-case doctrine because
this Court implicitly determined that the Horizon litigation and the HealthSouth litigation
constituted separate entitlements, and that plaintiff remained entitled to 50% of any recovery from
the Horizon litigation. Plaintiff’s argument is unavailing.
“Under the law of the case doctrine, if an appellate court has passed on a legal question
and remanded the case for further proceedings, the legal questions thus determined by the appellate
court will not be differently determined on a subsequent appeal in the same case where the facts
remain materially the same.” Grievance Administrator v Lopatin, 462 Mich 235, 259; 612 NW2d
120 (2000) (quotation marks and citation omitted). “Thus, as a general rule, an appellate court’s
determination of an issue in a case binds lower tribunals on remand and the appellate court in
subsequent appeals.” Id. “However, the law-of-the-case doctrine only applies to issues actually
decided—implicitly or explicitly—on appeal.” Kasben, 278 Mich App at 470.
In the previous appeal, this Court affirmed the trial court’s grant of summary disposition
of plaintiff’s fraud claims, agreed with the trial court that plaintiff’s contentions regarding the link
between the Horizon litigation and the HealthSouth litigation were immaterial because plaintiff’s
fraud claims were not viable, and otherwise declined to consider plaintiff’s arguments regarding
the Horizon litigation because they were not ripe. Prose, unpub op at 7. In other words, this Court
not only made no determinations regarding plaintiff’s arguments concerning the Horizon litigation,
this Court explicitly refused to consider those arguments. Therefore, plaintiff’s reliance on this
Court’s earlier opinion for purposes of invoking the law-of-the-case doctrine lacks merit.
Plaintiff also argues that the trial court erred when it amended the September 2015 opinion
because the court could not properly change a previous determination of property rights in the
absence of fraud. The trial court’s September 2015 opinion, however, determined that the parties’
property interests were specifically adjudicated in the judgment of divorce and all claims
respecting distribution of any marital assets merged into that final judgment.
Plaintiff argues further that the trial court improperly attempted to create ambiguity
regarding the meaning of the word “entitled” in the August 2010 order, and that the court’s
interpretation of that term ran contrary to its plain and ordinary meaning. We disagree. As
discussed previously, the trial court concluded that the August 17, 2010 order only provided that
plaintiff could make a claim for 50% of the value of the Horizon litigation but the judgment of
divorce extinguished such claim because the terms specified that plaintiff released any claims she
possessed against General Medicine and released all claims she had against defendant regarding
any property, and defendant became the sole owner of any potential recovery by General Medicine.
Plaintiff also protests that the court’s interpretation of the term “entitled” ran contrary to
its plain and ordinary meaning. We disagree.
In the context of statutory interpretation, our Supreme Court has observed that “[a]lthough
a phrase or a statement may mean one thing when read in isolation, it may mean something
substantially different when read in context.” GC Timmis & Co v Guardian Alarm Co, 468 Mich
416, 421; 662 NW2d 710 (2003). “In seeking meaning, words and clauses will not be divorced
from those which precede and those which follow.” Id. (quotation marks and citation omitted).
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Black’s Law Dictionary (11th ed) defines “entitle” as “[t]o grant a legal right to or qualify
for.” Similarly, Merriam-Webster’s Collegiate Dictionary (11th ed) defines “entitle” as “to
furnish with proper grounds for seeking or claiming something.” The trial court recognized that
use of the word “entitled” in the August 2010 order indicated only that at that time plaintiff could
make a claim for half of any recovery from the Horizon litigation. The trial court correctly
determined that the August 2010 order did not vest in plaintiff an ownership interest.
Plaintiff relies on In re Jajuga Estate, 312 Mich App 706, 719; 881 NW2d 487 (2015), in
which this Court interpreted the term “entitled” as used in MCL 700.2404(1), a section of the
Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., to “establish a right in a
decedent’s child to claim exempt property.” In that case, this Court interpreted “entitled” in the
context of reading the EPIC statutory scheme as a whole. Jajuga, 312 Mich App at 719. This
Court’s interpretation of the term “entitled” in Jajuga is not at odds with the interpretation the trial
court gave the term below in its consolidated opinion and order because the term “entitled” as used
in the EPIC means a right “to claim” exempt property. Id. In this case, the trial court ruled that
the August 2010 order recognized that plaintiff had a right to make a claim for half of the value of
any benefits received from the Horizon litigation but nothing more. Moreover, even if the term
“entitled” in the August 2010 order could be construed to have broader meaning, the entry of the
judgment of divorce very specifically addressed and determined the ownership issues respecting
General Medicine and any potential proceeds from its business litigation. The trial court correctly
understood this.
Plaintiff argues that the trial court erred when it ruled in its April 9, 2018 order that the
August 2010 order served as a temporary order. We disagree.
Temporary court orders for purposes of domestic relations are governed by MCR 3.207(C),
which provides as follows:
(1) A request for a temporary order may be made at any time during the
pendency of the case by filing a verified motion that sets forth facts sufficient to
support the relief requested.
(2) A temporary order may not be issued without a hearing, unless the
parties agree otherwise or fail to file a written objection or motion as provided in
subrules (B)(5) and (6).
(3) A temporary order may be modified at any time during the pendency of
the case, following a hearing and upon a showing of good cause.
(4) A temporary order must state its effective date and whether its
provisions may be modified retroactively by a subsequent order.
(5) A temporary order remains in effect until modified or until the entry of
the final judgment or order.
(6) A temporary order not yet satisfied is vacated by the entry of the final
judgment or order, unless specifically continued or preserved. This does not apply
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to support arrearages that have been assigned to the state, which are preserved
unless specifically waived or reduced by the final judgment or order.
Under MCR 3.207(C)(5) entry of a final judgment or order ends a temporary order’s
effectiveness and under MCR 3.207(C)(6) an unsatisfied temporary order is vacated by the entry
of a final judgment or order unless specifically continued or preserved. In the consolidated opinion
and order, the trial court ruled that the August 2010 order provided temporary relief that the entry
of the judgment of divorce vacated. Plaintiff contends that the August 2010 order could not have
been a temporary order because it did not state an effective date or contain a statement regarding
whether its provisions could be modified retroactively, as required by MCR 3.207(C)(4). Close
analysis of the August 2010 order indicates that it had an effective date of entry, specified
temporary relief necessitated by the circumstances, identified plaintiff’s right to claim 50% of any
potential proceeds from the Horizon litigation, but nowhere purports to make any final
nonmodifiable ruling on property ownership or the distribution of the marital estate’s assets. The
order’s plain language cannot be interpreted to have established a final dispositive ruling regarding
the distribution of the marital estate’s assets. The terms of the judgment of divorce, however,
resolved all of the issues pertaining to the parties’ respective property ownership interests and the
final distribution of the marital estate’s assets. The trial court, therefore, did not err by concluding
that the August 2010 order did not create a vested ownership interest in plaintiff in potential
recovery from the Horizon litigation.
Plaintiff asserts that the trial court denied her motion for leave to file a second amended
complaint without proper grounds for doing so. We disagree.
Plaintiff moved to add General Medicine as a defendant and to add counts of unjust
enrichment and conversion against it and defendant based on her belief that the divorce court in
its August 2010 order had awarded her 50% of the proceeds from the settlement in the HealthSouth
litigation. She asserted that the HealthSouth litigation settlement constituted part of the Horizon
litigation. The trial court ruled that plaintiff’s amendment would be futile because she released all
claims against General Medicine, including its recovery from HealthSouth, pursuant to the
judgment of divorce, and the judgment of divorce similarly barred her unjust-enrichment claim.
Plaintiff contends that the provisions of the judgment of divorce releasing her claims
against General Medicine and her entitlement to any portion of the recovery from the HealthSouth
litigation would not bar her conversion and unjust-enrichment claims because the settlement in the
HealthSouth litigation constituted part of the Horizon litigation. According to plaintiff, the
HealthSouth litigation consisted of two distinct components: (1) General Medicine’s fraudulent-
transfer claims against HealthSouth that were brought to execute the federal consent judgment,
and (2) General Medicine’s direct damage claims against HealthSouth that were dismissed by the
Alabama trial court. Plaintiff also asserts that the HealthSouth litigation settlement was part of the
Horizon litigation because defendant admitted that the HealthSouth settlement resulted in the
release of the federal consent judgment.
As discussed previously, the terms of the judgment of divorce released all claims and
resolved all rights and claims of any kind whatsoever that either party had or could claim against
the other. Plaintiff also released all claims respecting any interest in General Medicine or any
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recovery from its business litigation. Further, all claims merged into the judgment of divorce. The
trial court properly concluded that the provisions of the judgment of divorce defeated plaintiff’s
arguments for amendment.
Further, the judgment of divorce did not parse or otherwise recognize any bifurcation of
the HealthSouth litigation. It provided that to “the extent that General Medicine, P.C. or any of its
related entities should ever recover anything from the Health South litigation, Defendant shall
become and be the sole and separate owner of same, free and clear of all claims by Plaintiff.”
Because that unequivocal language barred plaintiff from any recovery from the HealthSouth
litigation, the trial court properly determined that plaintiff’s proposed amendment would be futile.
Therefore, the fundamental premise on which plaintiff based her proposed claims bore a fatal flaw.
Accordingly, the trial court correctly denied plaintiff’s motion to amend her complaint.
Affirmed.
/s/ James Robert Redford
/s/ Stephen L. Borrello
/s/ Jonathan Tukel
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