Natalie Olson v. Cecelia Bosanac ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
NATALIE OLSON, UNPUBLISHED
December 20, 2018
Plaintiff-Appellant,
v No. 341478
Monroe Circuit Court
CECELIA BOSANAC, LC No. 16-138967-CZ
Defendant-Appellee.
Before: GLEICHER, P.J., and BORRELLO and BECKERING, JJ.
PER CURIAM.
In this action primarily involving a dispute over real property, plaintiff appeals as of right
the trial court’s November 21, 2017 order of dismissal.1 For the reasons set forth in this opinion,
we affirm in part, reverse in part, and remand for further proceedings consistent with this
opinion.
I. BACKGROUND
Defendant is plaintiff’s mother. This case arises out of their dispute involving a parcel of
real property located in Monroe, Michigan that contains a single-family house (the Property).
On October 25, 2012, defendant conveyed by quit claim deed the Property to herself and plaintiff
“as Joint Tenants with Full Rights of Survivorship and not as Tenants in Common.” Defendant
apparently took this action for purposes of estate planning. Defendant testified during her
deposition that she “added [plaintiff’s] name” to the house “because a doctor told me I was going
to die soon.”
In October 2014, plaintiff moved to the Property to live in the home, and she continued to
live there for approximately one year. Plaintiff averred that at some point “in or around the
summer of 2015,” defendant “demanded” that plaintiff give up her interest in the Property by
1
Plaintiff specifically challenges on appeal the trial court’s grant of summary disposition in
favor of defendant on plaintiff’s claims for partition, quantum meruit, and unjust enrichment.
The other claims that plaintiff asserted against defendant in her complaint are not at issue in the
instant appeal.
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removing her name from the deed. Plaintiff refused and, according to plaintiff, defendant
“retaliated.” Finally, on November 29, 2015, the police responded to the Property after receiving
a 911 call reporting that defendant claimed to have been assaulted by plaintiff. The responding
officers interviewed both plaintiff and defendant. Plaintiff indicated that she was physically
attacked by defendant, while defendant maintained that she was physically attacked by plaintiff.
Although both plaintiff and defendant sustained minor abrasions, neither required medical
attention. Neither party was arrested since the officers concluded that there was not enough
evidence to determine which party was the initial aggressor. According to plaintiff’s affidavit,
the police asked plaintiff to leave the Property and stay with her father in Toledo, Ohio. Plaintiff
averred that her decision to leave the Property “was based on the request of the police, but was
not voluntary.”
On November 30, 2015, defendant filed a petition seeking an ex parte order for a
personal protection order (PPO) against plaintiff. On the same day, an ex parte order was
entered granting the PPO and prohibiting plaintiff from entering the Property until at least
November 30, 2016. According to plaintiff, she did not find out about the PPO “until several
months later.” She testified that she returned to the Property on two occasions during the week
following the November 29, 2015 incident and retrieved personal belongings, including clothing,
however she was not able to collect all of her belongings at that time. After plaintiff filed a
motion to terminate the PPO in April 2016, defendant apparently agreed to voluntarily terminate
the PPO.
However, plaintiff averred that defendant continuously refused to allow her to return to
the Property even after the PPO was terminated and that defendant would not allow her to pick
up her personal belongings. At some point, defendant changed the locks to the Property and did
not give plaintiff a key. Plaintiff testified during her deposition, however, that she never asked
defendant to allow her to return to the Property to live there after the November 29, 2015
incident. Plaintiff also testified that she did not contribute any money for improvements to house
after her name was added to title.
On June 20, 2016, plaintiff filed a complaint alleging that she had been prohibited from
using the Property or entering the Property to remove her belongings since November 29, 2015.
As relevant to the issues now raised on appeal, plaintiff’s complaint alleged causes of action for
quantum meruit, unjust enrichment, and partition. In her quantum meruit and unjust enrichment
claims, plaintiff sought compensation for half the fair rental value of the Property since
November 29, 2015, based on the allegation that defendant had full possession of the Property
since that time. In her claim for partition, plaintiff alleged that she and defendant were co-
owners of the Property as joint tenants with rights of survivorship and that it had become
impossible for them to jointly possess and enjoy the whole of the Property. Plaintiff’s complaint
requested the following relief with respect to partition:
86. Because the subject property is a single building, partition in-kind is
impractical, if not impossible. Accordingly, the subject property should be sold,
and the proceeds divided between [plaintiff] and [defendant].
WHEREFORE, Plaintiff requests this Court enter the following relief:
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a. That a just and equitable division and partition of the subject property
be made between Plaintiff and Defendant, according to their respective rights and
interests, according to the course of practice in this court, and to the applicable
statute;
b. That if it appears that a partition cannot be made without manifest
injury to the rights of the parties then the subject property should be sold under
the judgment and by the direction of this court, and that the proceeds of that sale,
after payment of the expenses and the costs of this action, be divided between the
parties according to their respective rights and interests in the subject property;
c. That the rights and interests of the parties in and to the land and
premises and in the proceeds if the land is sold be ascertained and declared by the
judgment of this court;
d. That a receiver be appointed to lease and manage the subject property
and to protect the subject property from waste, trespass, and damage to the
property;
e. That the Plaintiff recover her costs, including attorney fees, incurred in
obtaining a partition; and
f. That the Plaintiff may have any other relief warranted by equity and
good conscience.
The parties each subsequently moved for summary disposition: defendant moved under
MCR 2.116(C)(8) and (10), and plaintiff moved under MCR 2.116(C)(10) only. As relevant to
the issues raised on appeal, defendant first argued that because the parties held the Property as
joint tenants with rights of survivorship and a right of survivorship cannot be severed by a joint
tenant without the consent of all joint tenants holding a right of survivorship, the court could not
order the Property to be partitioned or sold based solely on plaintiff’s request for such an order.
In other words, argued defendant, the court was required to deny plaintiff’s attempt to force a
sale of the Property. Next, defendant argued similarly that although it was possible for a
cotenant in a joint tenancy with rights of survivorship to convey his or her interest in her own
possessory life estate, the cotenants’ dual contingent remainders could not be destroyed by a
cotenant’s unilateral action and the court in this case therefore could not destroy the contingent
remainder interests of the parties by ordering the Property to be partitioned or sold. Defendant
maintained that plaintiff had not requested partition or sale of only the life estate interest and that
even if she had, such an interest was essentially unmarketable. With respect to the quantum
meruit and unjust enrichment claims, defendant argued in her response to plaintiff’s summary
disposition motions that these were contract theories that were inapplicable to the instant
property matter and that the law would not apply a contract in this situation where the parties’
respective rights were defined in the deed.
Plaintiff first argued in her summary disposition motion, as relevant to her appellate
issues, that she was entitled to summary disposition on her unjust enrichment and quantum
meruit claims for half the fair rental value of the Property because defendant had excluded
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plaintiff from the Property despite plaintiff’s equal right to possession of the Property.
Additionally, plaintiff argued that the trial court had the legal authority to order defendant to pay
plaintiff half the fair rental value of the Property by ordering the parties’ life estates to be
partitioned. Plaintiff maintained that the court had the power in equity to order the joint tenant in
exclusive possession to account to the other joint tenant by either ordering defendant to pay half
the fair rental value of the Property to plaintiff or ordering the Property to be leased during the
parties’ lives with the proceeds to be split between them and fee title to revert to the survivor
once one of the parties died.
After hearing oral argument at the hearing on the competing summary disposition
motions, the trial court announced its ruling from the bench. The trial court first denied both
parties’ motions for summary disposition with respect to certain claims raised in plaintiff’s
complaint that are not at issue on appeal, concluding that genuine issues of material fact existed
for these claims.
Next, with respect to the quantum meruit and unjust enrichment claims, the trial court
concluded that neither theory was applicable to this case. The trial court reasoned that these
theories are “designed to imply contractual rights where there’s no existing express contract” and
that the parties’ rights and obligations in the instant case were “set forth pursuant to the terms of
the deed.” The trial court further noted (1) that there was no allegation that plaintiff invested any
money into the Property; (2) that defendant lived in the house for many years before adding
plaintiff’s name to the title for the Property through a deed, which conveys an interest in
property; and (3) that defendant did not receive anything from plaintiff beyond what defendant
already had. The trial court thus denied plaintiff’s motion for summary disposition on these
claims and granted defendant’s motion for summary disposition on these claims.
Next, the trial court addressed the partition issue, granting summary disposition in
defendant’s favor and denying plaintiff’s motion for summary disposition on that issue. In
reaching this conclusion, the trial court reasoned as follows:
In this matter, the prayer for relief in count seven of plaintiff’s complaint
was partition where they ask that the subject property be sold and the proceeds be
divided. This was the request that was made by the plaintiff and we actually
talked about this at a previous motion that it can’t be done in that fashion. I said
those words. [Defense counsel] said those words and it can’t be done in that
fashion for all of the case law that we’re talking about now. Only in the motion
does plaintiff now talk about the portion of the life estate. That wasn’t the prayer
for relief and in that matter, this is exactly like the HRIT[2] [sic] case because the
prayer for relief was to—that the property be sold and the proceeds be divided and
that cannot be done.
2
This unpublished case is discussed in Part IV of this opinion.
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So, apparently we’re now at least conceding that what was discussed
previously was correct and that the parties have an indestructible dual contingent
remainder.
So, then the question was what about these life estates? Albro[3] was a
commercial property. They clearly, from a practical point of view, could have
partitioned the life estate and had separate businesses or retail or whatever the
case may be. That is not the case here. This is almost exactly like the HRIT case
except that there’s no allegation that the plaintiff put any money in this case,
which is why the Court in HRIT was talking about quantum meruit. There’s no
allegation that that took place here.
So, there is also no cases cited that tells me that what we should do is take
one of the two people out who have been living there and lived there previous to
the changing of the deed and have them leave their home so that the property can
be rented and so that the plaintiff can receive a benefit that she received from the
defendant by virtue of this deed itself.
I think that while the HRIT case is not a legal precedent, it almost hits this
thing right on the nose and from a practical point of view, trying to sell or lease
the plaintiff’s life estate in this matter simply isn’t going to work, not under the
presence of the circumstances.
However, the bottom line here is that plaintiff’s request was that the
property be sold and the proceeds be divided. Plaintiff’s motion on this issue for
summary disposition is denied. The defendant’s motion on summary disposition
on this matter is granted.
Consistent with the rulings announced during the hearing, the trial court issued an order
on September 14, 2017, denying plaintiff’s summary disposition motion, granting defendant’s
summary disposition motion in part, and denying defendant’s summary disposition motion in
part. The order also indicated that “[t]his Order does not resolve all pending claims and the case
remains open.”
The trial court subsequently denied plaintiff’s motion for reconsideration in an order
issued on November 14, 2017. On November 21, 2017, the trial court entered an order
dismissing with prejudice all of plaintiff’s claims that remained after the trial court had granted
summary disposition in favor of defendant on some of plaintiff’s claims. The order explained
that other claims made by plaintiff had been resolved through case evaluation. This order
provided that it “resolve[d] the last pending claim and close[d] the case.” Plaintiff filed her
claim of appeal in this Court on December 12, 2017. On appeal, plaintiff specifically challenges
the trial court’s grant of summary disposition in favor of defendant on plaintiff’s claims for
partition, quantum meruit, and unjust enrichment.
3
Albro v Allen, 434 Mich. 271; 454 NW2d 85 (1990).
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II. STANDARD OF REVIEW
A trial court’s summary disposition ruling is reviewed de novo to determine if the
moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich. 109, 118;
597 NW2d 817 (1999).
In this case, although the parties’ summary disposition motions implicated both MCR
2.116(C)(8) and (10), the trial court did not explicitly specify which subrule it relied on in
making its ruling.
MCR 2.116(C)(8) permits summary disposition where the “opposing party has failed to
state a claim on which relief can be granted.” Under this subrule, which tests the legal
sufficiency of the complaint, a court accepts all well-pleaded factual allegations as true and
construes them in a light most favorable to the nonmovant. Maiden, 461 Mich. at 119. “A
motion under MCR 2.116(C)(8) may be granted only where the claims alleged are so clearly
unenforceable as a matter of law that no factual development could possibly justify recovery.”
Id. (quotation marks and citation omitted). “When deciding a motion brought under this section,
a court considers only the pleadings.” Id. at 119-120.
However, the parties in the instant case attached additional evidence to their motions for
summary disposition, and it appears from the nature of the trial court’s statements on the record
that it considered this evidence and may have understood at least some of its rulings to be under
MCR 2.116(C)(10). When it appears that the trial court considered material outside the
pleadings, this Court construes the motion has having been decided pursuant to MCR
2.116(C)(10). Hughes v Region VII Area Agency on Aging, 277 Mich. App. 268, 273; 744 NW2d
10 (2007). Under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, a
court “considers affidavits, pleadings, depositions, admissions, and other evidence submitted by
the parties in the light most favorable to the party opposing the motion.” Maiden, 461 Mich. at
120 (citation omitted). “A trial court may grant a motion for summary disposition under MCR
2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue
in respect to any material fact, and the moving party is entitled to judgment as a matter of law.”
Quinto v Cross & Peters Co, 451 Mich. 358, 362; 547 NW2d 314 (1996). “A genuine issue of
material fact exists when the record, giving the benefit of reasonable doubt to the opposing party,
leaves open an issue upon which reasonable minds might differ.” West v Gen Motors Corp, 469
Mich. 177, 183; 665 NW2d 468 (2003).
Additionally, “[a]n action to partition land is equitable in nature,” In re Temple Marital
Trust, 278 Mich. App. 122, 141; 748 NW2d 265 (2008), and a trial court’s equitable decisions are
reviewed de novo on appeal, Wengel v Wengel, 270 Mich. App. 86, 91; 714 NW2d 371 (2006).
Finally, the question whether a party has been unjustly enriched is generally a factual
question, but the question whether an unjust enrichment claim can be maintained is a question of
law that this Court reviews de novo. Morris Pumps v Centerline Piping, Inc, 273 Mich. App. 187,
193; 729 NW2d 898 (2006). Claims for unjust enrichment and quantum meruit are generally
treated in a similar manner. NL Ventures VI Farmington, LLC v Livonia, 314 Mich. App. 222,
241; 886 NW2d 772 (2015). Quantum meruit claims are equitable in nature. Morris Pumps, 273
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Mich App at 199. This Court “review[s] de novo a trial court’s dispositional ruling on an
equitable matter.” Id. at 193.
III. JURISDICTION
As an initial matter, before addressing plaintiff’s appellate issues, we must address the
jurisdictional argument raised by defendant. Defendant argues that this Court lacks jurisdiction
over this appeal because plaintiff untimely filed her claim of appeal. According to defendant,
plaintiff is appealing the trial court’s denial of her motion for reconsideration, and plaintiff filed
her claim of appeal more than 21 days after the order denying reconsideration was filed.
“Whether this Court has jurisdiction to hear an appeal is always within the scope of this
Court’s review.” Chen v Wayne State Univ, 284 Mich. App. 172, 191; 771 NW2d 820 (2009).
This Court has jurisdiction of an appeal of right from a “final judgment or final order of the
circuit court,” MCR 7.203(A)(1), which is defined in pertinent part as “the first judgment or
order that disposes of all of the claims and adjudicates the rights and liabilities of all the parties,”
MCR 7.202(6)(a)(i). A party in a civil action is required to file a claim of appeal within “21 days
after entry of the judgment or order appealed from.” MCR 7.204(A)(1)(a); MCR 7.204(B)(1).
The time limit for filing an appeal of right is jurisdictional. MCR 7.204(A).
In this case, the trial court entered an order on November 21, 2017, dismissing with
prejudice all of plaintiff’s claims that remained after the trial court had granted summary
disposition in favor of defendant on some of plaintiff’s claims. This was the first order that
disposed of all of plaintiff’s claims. The earlier order of September 14, 2017, only disposed of
plaintiff’s claims for quantum meruit, unjust enrichment, and partition; this order specifically
provided that other claims made by plaintiff could proceed and that the case remained open.
Plaintiff’s motion for reconsideration was accordingly limited to the claims for quantum meruit,
unjust enrichment, and partition, and the trial court’s November 14, 2017 order denying
reconsideration was likewise limited to those claims. Therefore, the trial court’s November 21,
2017 order was a final judgment or order because it was the first order to dispose of all of the
claims and adjudicate the rights and liabilities of the parties. MCR 7.202(6)(a)(i). Plaintiff filed
her claim of appeal on December 12, 2017, which was 21 days after the November 21, 2017
order. Thus, plaintiff’s claim of appeal was timely, and this Court has jurisdiction over this
appeal as of right. MCR 7.203(A)(1); MCR 7.204(A)(1)(a); MCR 7.204(B)(1). As such,
plaintiff may challenge the trial court’s rulings in its earlier order related to the partial grant and
denial of summary disposition. Bonner v Chicago Title Ins Co, 194 Mich. App. 462, 472; 487
NW2d 807 (1992) (“Where a party has claimed an appeal from a final order, the party is free to
raise on appeal issues related to other orders in the case.”).
IV. PARTITION
Plaintiff first argues on appeal that she has wrongfully been excluded from exercising her
right to possession of the Property and is entitled as a matter of law to seek partition of the
Property—especially the joint life estate interest—in order to enforce her rights as a joint tenant
with full rights of survivorship. She further argues that when physical division of the property is
impractical, a court may instead order sale and division of the proceeds or order the cotenant
exercising exclusive possession to pay rent to the excluded cotenant.
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The parties in this case do not dispute the fact that defendant’s conveyance by deed to
herself and plaintiff “as Joint Tenants with Full Rights of Survivorship and not as Tenants in
Common” created a joint tenancy with full rights of survivorship. A “joint tenancy with full
rights of survivorship” is “created by express words of survivorship in the granting instrument in
addition to those creating a joint tenancy, such as . . . ‘with full rights of survivorship.’ ” Albro v
Allen, 434 Mich. 271, 275; 454 NW2d 85 (1990) (citation omitted). “The ‘joint tenancy with full
rights of survivorship’ is comprised of a joint life estate with dual contingent remainders.” Id.
The dual contingent remainders of a joint tenancy with full rights of survivorship are
“indestructible,” and a “cotenant’s contingent remainder cannot be destroyed by an act of the
other cotenant.” Id. at 276.
However, it “is well settled that life estates are freely transferable,” and “a person sharing
a joint life estate with dual contingent remainders may convey his interest in the joint life estate,
without destroying the cotenant’s contingent remainder.” Id. at 280, 281. A cotenant’s transfer
of his or her interest in the joint life estate does not affect the contingent remainders. Id. at 287.
In the case of such a transfer, the last surviving original cotenant, “or any person to whom she
has transferred her contingent remainder, takes the whole estate.” Id.
Accordingly, our Supreme Court in Albro held that the “joint life estate element” of a
joint tenancy with full rights of survivorship “may be partitioned without affecting the contingent
remainders,” but the “dual contingent remainders are not subject to partition because they are not
possessory estates.” Id. at 284, 286; see also MCL 600.3308 (“Any person who has an estate in
possession in the lands of which partition is sought may maintain a claim for partition of those
lands, but a person who has only an estate in reversion or remainder in the lands may not
maintain a claim for their partition.”). The Albro Court further explained that, pursuant to the
language of MCL 600.3308, although a person may not maintain a partition action if the person
holds only a contingent remainder, “[a] person holding both a life estate and a future interest may
have partition of the life estate only . . . .” Albro, 434 Mich. at 285 n 5. The partition of a life
estate is effective until the life estate terminates. Id. at 285-286.
In discussing the purposes of partition proceedings, our Supreme Court has stated that
“[c]ourts should be, and are, adverse to any rule which will compel unwilling persons to use their
property in common.” Henkel v Henkel, 282 Mich. 473, 481; 276 N.W. 522 (1937) (quotation
marks and citation omitted). Our Supreme Court in Albro explained the nature of partition
proceedings in more detail as follows:
An action for partition has as its object the distribution of possession
between those entitled to possession. Partition may be accomplished voluntarily
by cotenants or by judicial action. Physical division of the jointly held property is
the preferred method of partition. “Normally a physical division of the property
confers upon each cotenant his respective fractional portion of the land.” Where
such a division results in inequalities in owners’ shares, the court may award
money payments to offset the difference. Although partition in kind is favored,
the court may also order sale and division of the proceeds when it concludes that
an equitable physical division cannot be achieved. [Albro, 434 Mich. at 284
(citations omitted).]
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A court’s determination whether to grant partition or to instead order sale of the subject
property and a division of the proceeds implicate statutes and court rules. Under MCL 600.3332,
a court has the authority to order sale of the property if partition would cause great prejudice;
that statute provides as follows:
If the court finds that all the lands and tenements of which division or
partition is sought are so situated, or that any district, tract, lot, or portion of the
lands and tenements is so situated, that a partition and division of them among the
persons interested in them cannot be made without great prejudice to the owners,
the court may order the circuit court commissioner to sell the premises which
cannot be divided or partitioned, at a public auction to the highest bidder. If the
court finds that any portion, interest, or part can be divided and partitioned and
that other portions, interests, or parts cannot be divided without great prejudice to
the owners, the court may appoint partition commissioners and direct them to
partition and divide the parts or interests which can be divided and to set aside to
be sold the portions, interests, or parts which cannot be divided and these may be
sold as provided in the court rules. The court may fix and determine the
minimum price at which the real property may be sold.
Under MCR 3.401(A), a trial court in a proceeding for partition “shall determine (1) whether the
premises can be partitioned without great prejudice to the parties; (2) the value of the use of the
premises and of improvements made to the premises; and (3) other matters the court considers
pertinent.” Pursuant to MCR 3.401(B), “[i]f the court determines that the premises cannot be
partitioned without undue prejudice to the owners, it may order the premises sold in lieu of
partition under MCR 3.403.” Procedural requirements related to the sale and distribution of
proceeds are contained in MCR 3.403. Furthermore, MCL 600.3348 provides: “Whenever it
appears that to do so would benefit any part owner of the premises of which partition is sought,
the court may appoint a receiver having such authority as is necessary to lease the premises; or
protect them from waste, trespass, or injury; or for any other purpose.” Our Supreme Court has
held that it was appropriate in a partition suit to order a subject property to be sold as an entirety,
rather than divided, because the nature of the property and its improvements made it impossible
to divide the property equally between the six owners and the property commanded a higher
price when sold as a unit. Burns v Ambler, 302 Mich. 526, 527-530; 5 NW2d 451 (1942).
Furthermore, a cotenant of a joint tenancy with full rights of survivorship seeking
partition of the life estate interest when another cotenant has had exclusive possession of the
subject property may be able to recover rent. In Frenzel v Hayes, 242 Mich. 631, 636; 219 N.W.
740 (1928), our Supreme Court explained: “One cotenant may not recover rent from another
cotenant who with his consent occupied the premises owned in common. But, where the
question arises in partition proceedings in equity, and particularly when the possession has been
exclusive, this court has recognized that in adjusting the equities of the parties the one who has
had the exclusive occupation of the premises should account for its use and occupation.”
However, the party who has had exclusive possession is still entitled to credit based on the
expenses on the subject property, such as taxes, paid by that party. Id. at 639. As stated earlier,
partition proceedings may be brought by “[a]ny person who has an estate in possession.” MCL
600.3308. “An estate in possession, is where the owner has an immediate right to the possession
of the land . . . .” MCL 554.8. The holder of a life estate interest is “entitled to the possession
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and rents, issues and profits” of the property. Pitcher v Douglas, 37 Mich. 339, 341 (1877).
Specifically, the joint life estate interest of a joint tenancy with full rights of survivorship is “a
possessory, freehold estate with an immediate right to occupy the property.” Wengel, 270 Mich
App at 99. “Each joint tenant shares in possession of the entire estate, and each is entitled to an
undivided share of the whole.” Albro, 434 Mich. at 274. And, as previously stated, our Supreme
Court has expressly held that a cotenant of a joint tenancy with full rights of survivorship may
seek partition of the life estate interest. Id. at 284, 286. Accordingly, it follows that a cotenant
of a joint tenancy with full rights of survivorship may be entitled to some amount of rent if
excluded by another cotenant from the property in which both cotenenats hold a possessory life
estate interest.
In this case, as an initial matter, the trial court correctly recognized that it could not grant
partition, or order sale and divisions of the proceeds in lieu of partition, with respect to the
indestructible dual contingent remainders held by the parties as cotenants of a joint tenancy with
full rights of survivorship. See Albro, 434 Mich. at 284; MCL 600.3308. The trial court also
correctly recognized that it therefore could not grant complete partition, or order sale and
divisions of the proceeds in lieu of partition, with respect to all of the present possessory and
expectancy interests in the Property, see MCL 554.7; MCL 554.8; MCL 554.9, i.e. with respect
to the Property in fee simple absolute, see MCL 554.2.
However, the trial court erred by concluding that plaintiff explicitly asked solely for this
form of relief and relying on this conclusion as the basis to support its decision to deny plaintiff’s
summary disposition motion and grant defendant’s summary disposition motion.
As previously stated, the partition count of plaintiff’s complaint sought relief in the form
of requesting in pertinent part that “a just and equitable division and partition of the subject
property be made between Plaintiff and Defendant, according to their respective rights and
interests”; that “the subject property . . . be sold, and the proceeds divided” because partition in-
kind was impractical; that “if it appears that a partition cannot be made without manifest injury
to the rights of the parties then the subject property should be sold under the judgment and by the
direction of this court, and that the proceeds of that sale, after payment of the expenses and the
costs of this action, be divided between the parties according to their respective rights and
interests in the subject property”; that “the rights and interests of the parties in and to the land
and premises and in the proceeds if the land is sold be ascertained and declared by the judgment
of this court”; and that “a receiver be appointed to lease and manage the subject property and to
protect the subject property from waste, trespass, and damage to the property.” Nonetheless, the
trial court apparently concluded that plaintiff had sought only to have the proceeds divided from
a sale of the Property in fee simple absolute, and it apparently determined that plaintiff had failed
to state a claim on which relief could be granted because such a remedy is unavailable to a
cotenant of a joint tenancy with full rights of survivorship.
It is evident from examining the prayer for relief in the complaint, however, that plaintiff
clearly requested partition or, in lieu thereof, sale or lease of the Property and division of the
proceeds according to the parties’ respective rights and interests. Plaintiff further requested that
the parties’ respective rights and interests be determined. At the time the complaint was filed,
there was no guarantee that defendant would not contest plaintiff’s assertion that the parties
owned the property as joint tenants with full rights of survivorship.
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Additionally, with respect to joint tenants with full rights of survivorship, our Supreme
Court has made clear, as the trial court recognized, that the only form of partition that may
legally be sought by such a cotenant is partition of the joint life estate interest. In Albro, our
Supreme Court overruled what had, up until that point, been the rule in Michigan that partition
was unavailable “to parties holding joint life estates with dual contingent remainders”; in doing
so, the Court held, as previously stated, that the joint life estate element could be partitioned but
that the dual contingent remainders could not be partitioned. Albro, 434 Mich. at 282, 284, 286.
In explaining this holding, the Albro Court reasoned as follows:
The common law regarding partition of joint life estates is summarized in
Baskins v Krepcik, 153 Neb 36, 39; 43 NW2d 624 (1950):
The common law conferred this remedy upon joint tenants,
tenants in common, owners of estates for life or years, and owners
of estates in which some of the cotenants held for term of life or
years and others held estates of inheritance. A prerequisite was an
estate in possession, and none but parties having such estates were
bound by the judgment, but the partition did not affect estates in
remainder or contingency. Tenants of estates in remainder were
not permitted to interfere with tenants in possession, but tenants in
possession had power to compel partition confined to their
particular estates but could do nothing towards effecting a
severance of estates in remainder or reversion. It was the rule at
common law and under the English statutes that estates of
remainder or reversion could not be divided by proceedings for
compulsory partition.
We find this summary of the common law persuasive; it is consistent with
Michigan authority that life estates may be partitioned and that partition of a life
estate will not affect the estate in remainder. Thus, we hold that the joint life
estate element of such a cotenancy may be partitioned without affecting the
contingent remainders. The retention of the rule against partition would be
anomalous in view of our holding today that a party may alienate his undivided
interest in a joint life estate. We expressly overrule those cases holding that a
“joint tenancy with right of survivorship” may not be partitioned. [Albro, 434
Mich. at 286-287 (some citations omitted).]
Hence, while a cotenant of a joint tenancy with full rights of survivorship before Albro
could not obtain partition at all, the decision in Albro changed that rule and held that such a
cotenant could obtain partition only with respect to the joint life estate interest. Id. The bottom
line is that partition is available for such a cotenant. Id. Yet, in the instant case, the trial court
essentially penalized plaintiff for failing to explicitly specify that she was not requesting relief to
which she was not even legally entitled. In other words, the fact that she did not indicate that her
prayer for relief did not include the prohibited relief of partition of the dual contingent
remainders does not negate the fact that her request for partition in accordance with her property
interest did include a legally permissible request for partition of her life estate interest.
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The Michigan Court rules do not require such exacting specificity in pleading as that
which the trial court required in this case. Allegations in pleadings must merely be “clear,
concise, and direct.” MCR 2.111(A)(1). In order to properly plead a claim, the complaint must
include the following:
(1) A statement of the facts, without repetition, on which the pleader relies
in stating the cause of action, with the specific allegations necessary reasonably to
inform the adverse party of the nature of the claims the adverse party is called on
to defend; and
(2) A demand for judgment for the relief that the pleader seeks. If the
pleader seeks an award of money, a specific amount must be stated if the claim is
for a sum certain or a sum that can by computation be made certain, or if the
amount sought is $25,000 or less. Otherwise, a specific amount may not be
stated, and the pleading must include allegations that show that the claim is within
the jurisdiction of the court. Declaratory relief may be claimed in cases of actual
controversy. See MCR 2.605. Relief in the alternative or relief of several
different types may be demanded. [MCR 2.111(B) (emphasis added).]
Further, plaintiff’s prayer for relief in her partition count included a request for “any
other relief warranted by equity and good conscience.” MCR 2.601(A) provides that “[e]xcept
as provided in subrule (B) [regarding default judgments], every final judgment may grant the
relief to which the party in whose favor it is rendered is entitled, even if the party has not
demanded that relief in his or her pleadings.” (Emphasis added.) This Court has held a request
in a complaint for “ ’all other relief that [the] Court deems equitable and just,’ ” along with
consideration of the nature of the plaintiff’s allegations in the complaint was “sufficient to
constitute a request, though not explicit,” for injunctive or declaratory relief that was not
expressly stated in the complaint. Arabo v Mich Gaming Control Bd, 310 Mich. App. 370, 394-
395; 872 NW2d 223 (2015) (alteration in original). This Court further held in Arabo that such a
claim for injunctive or declaratory relief was “not ‘so clearly unenforceable as a matter of law
that no factual development could possibly justify recovery’ ” and that the trial court had
therefore erred by relying solely on the remedy sought by the plaintiff’s complaint to justify
granting summary disposition in the defendant’s favor under MCR 2.116(C)(8). Id. at 379-380,
391, 396 (citation omitted). Similarly, in this case, plaintiff’s prayer for relief was sufficient to
apprise defendant and the court of the relief she sought and clearly encompassed her claim for
partition (or sale or lease in lieu thereof) regarding her life estate interest, a remedy for which she
argued in her motion for summary disposition. The trial court therefore erred by relying solely
on an overly technical reading of plaintiff’s prayer for relief to justify granting summary
disposition in defendant’s favor on plaintiff’s partition claim.
This Court’s unpublished opinion in Hrit v McKeon,4 although relied on heavily by the
trial court, does not actually suggest that a different outcome is warranted. The trial court
4
Hrit v McKeon, unpublished per curiam opinion of the Court of Appeals, issued February 3,
2015 (Docket No. 317988).
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correctly recognized that Hrit is not binding legal precedent but may be relied on for persuasive
guidance. See, e.g., Peterson Novelties, Inc v City of Berkley, 259 Mich. App. 1, 20 n 16; 672
NW2d 351 (2003). Nonetheless, Hrit is distinguishable from the instant case.
In Hrit, the defendant conveyed a parcel of property containing a house to herself and the
plaintiff “ ‘as joint tenants with full rights of survivorship.’ ” Hrit, unpub op at 1. Eventually,
the parties’ relationship ended, and the plaintiff filed a one-count complaint requesting partition
of the property. Id. at 1-2. The plaintiff further requested that since partition in-kind was
impractical due to the fact that the property contained only a single building, the court should
either order sale of the property and division of the proceeds or order the defendant to buy out
the plaintiff’s interest in the property. Id. at 2. In affirming the trial court’s ruling granting
summary disposition in favor of defendant under MCR 2.116(C)(8) for the plaintiff’s failure to
state a claim, this Court stated that “because the dual contingent remainders at issue in this case
are indestructible and not subject to partition, the most that either cotenant could ever be
compelled to convey is her one-half interest in the joint life estate,” and the Court concluded that
“a sale of the premises in lieu of partition is not a reasonably available option in this case.” Id. at
4-6 (emphasis added.) It is unclear from the opinion in Hrit what factors actually convinced the
Court to reach this ruling. The trial court in the instant case, however, apparently believed that
Hrit stood for the proposition that a life estate was always unmarketable and essentially that a
cotenant of a joint tenancy with full rights of survivorship in a property containing a single
residence can therefore never get any form of relief in a partition action. Although it may be
logical to presume that such a life estate could have little value, this Court’s opinion in Hrit does
not purport to make such a blanket statement that all such life estates are unmarketable but
instead indicated that the conclusion was limited to the facts of that particular case. Id. at 6. The
approach taken by the trial court in the instant case would, in essence, result in a resurrection of
the rule that our Supreme Court overruled in Albro.
Considering that a cotenant of a joint tenancy with full rights of survivorship may seek
partition of the life estate element, Albro, 434 Mich. at 284, 286, it does not appear that a life
estate’s value may be deemed to be essentially worthless as a matter of law but instead must be
ascertained as a question of fact that depends on the circumstances of a particular case. See, e.g.,
MCL 600.3332 (requiring the court to “find[]” that partition “cannot be made without great
prejudice to the owners” before ordering sale); Burns, 302 Mich. at 527-530 (discussing a
plethora of facts specific to the property at issue in that case, which justified the conclusion that
sale, rather than partition, was the appropriate remedy).
In the instant case, the trial court’s stated that “from a practical point of view, trying to
sell or lease the plaintiff’s life estate in this matter simply isn’t going to work,” but this assertion
was not based on any record evidence that would show the lack of a genuine issue of material
fact regarding the value of selling or renting the joint life estate. Additionally, regarding
plaintiff’s claim that she was entitled to half the fair rental value of the Property, such a claim
involves “adjusting the equities of the parties,” Frenzel, 242 Mich. at 636, and questions of
material fact exist regarding the circumstances of plaintiff’s absence from the Property. For
example, there is evidence that the physical altercation that led to plaintiff leaving the Property to
live with her father was instigated by plaintiff, and there is also evidence that the altercation was
instigated by defendant. Further, there is evidence that defendant changed the locks without
giving plaintiff a key and that defendant refused to allow plaintiff to return to the Property, while
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there is also evidence that plaintiff never asked defendant to permit her to return to the Property
to live.
In conclusion, the trial court erred by mischaracterizing plaintiff’s prayer for relief and
basing its summary disposition ruling on this ground. The trial court further erred to the extent
that it based its summary disposition ruling on a presumed lack of marketability of the joint life
estate interest and this Court’s unpublished opinion in Hrit; genuine issues of material fact exist
regarding the partition claim, making summary disposition inappropriate. Quinto, 451 Mich. at
362. The trial court’s summary disposition ruling on the partition claim is reversed, and
plaintiff’s claim for partition of the joint life estate interest should be allowed to proceed on
remand for a determination whether plaintiff is actually entitled to any relief on this claim
because, at this juncture, it has not been demonstrated that as a matter of law she is barred from
such relief.
V. QUANTUM MERUIT AND UNJUST ENRICHMENT
Plaintiff next argues that the trial court erred by denying her motion for summary
disposition, and granting summary disposition in defendant’s favor, with respect to her claims
for quantum meruit and unjust enrichment. Plaintiff maintains that defendant has held exclusive
possession of the Property, contrary to plaintiff’s right to possession as a cotenant, without
having to account for this exclusive use.
“ ‘The theory underlying quantum meruit recovery is that the law will imply a contract in
order to prevent unjust enrichment . . . .’ As such, claims for unjust enrichment and quantum
meruit have historically been treated in a similar manner.” NL Ventures, 314 Mich. App. at 241
(citation omitted; ellipsis in original). “[I]n order to sustain a claim of quantum meruit or unjust
enrichment, a plaintiff must establish (1) the receipt of a benefit by the defendant from the
plaintiff and (2) an inequity resulting to the plaintiff because of the retention of the benefit by the
defendant.” Morris Pumps, 273 Mich. App. at 195. “That a person benefits from another is not
alone sufficient to require the person to make restitution for the benefit.” NL Ventures, 314 Mich
App at 241. “For quantum meruit or unjust enrichment to apply, there must not be an express
contract between the parties covering the same subject matter.” Meisner Law Group PC v
Weston Downs Condo Ass’n, 321 Mich. App. 702, 726; 909 NW2d 890 (2017).
In this case, plaintiff’s quantum meruit and unjust enrichment claims stem from the fact
that both she and defendant hold an interest in the Property. The nature of the parties’ interests
in the Propety is defined by the deed granting the Property to both of them as joint tenants with
full rights of survivorship. “Deeds are contracts, and when courts can ascertain from the deed
itself the intent of the grantor, the deed will be construed so as to give that intent effect . . .”
Negaunee Iron Co v Iron Cliffs Co, 134 Mich. 264, 279; 96 N.W. 468 (1903); see also Penrose v
McCullough, 308 Mich. App. 145, 147; 862 NW2d 674 (2014). Because the deed in the instant
case governs the same subject matter and parties involved in plaintiff’s claims for quantum
meruit and unjust enrichment, quantum meriut and unjust enrichment are inapplicable in this
case. Meisner Law Group, 321 Mich. App. at 726. The trial court did not err by granting
summary disposition in defendant’s favor on these claims.
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Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Stephen L. Borrello
/s/ Jane M. Beckering
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