                              STATE OF MICHIGAN

                           COURT OF APPEALS



SCOTT D. NORTON,                                                    UNPUBLISHED
                                                                    September 19, 2017
               Plaintiff-Appellant,

v                                                                   No. 332348 and 333270
                                                                    Oakland Circuit Court
TRACI NELSON, also known as TRACI                                   LC No. 2015-150277-CK
MICHELLE MARTIN-NELSON, TRACI
MICHELLE MARTIN, TRACI MICHELLE
NELSON and TRACI MARTIN,

               Defendant-Appellee.



Before: GADOLA, P.J., and CAVANAGH and SWARTZLE, JJ.

PER CURIAM.

       In Docket No. 332348, plaintiff appeals as of right from the trial court’s order granting
defendant’s motion for summary disposition with respect to plaintiff’s claims for breach of
contract, unjust enrichment, promissory estoppel, and fraud. In Docket No. 333270, plaintiff
appeals as of right from the trial court’s order granting defendant $17,531.25 in attorney fees and
$126.07 in costs for a total of $17,657.32.1 We affirm.

                                       I. BACKGROUND



      Plaintiff and defendant were involved in a romantic relationship, but never married.
According to plaintiff, the parties cohabited for 18 months with defendant’s minor children. At
some point in the relationship, plaintiff began paying for defendant’s living expenses, including
some of the children’s expenses. After the relationship ended, plaintiff sued defendant, seeking
repayment for $68,784.50 in payments he claims he made for her living expenses. Plaintiff
advanced several theories of entitlement in his complaint. Primarily, plaintiff claimed that he


1
  These appeals were consolidated by order of this Court. Norton v Nelson, unpublished order of
the Court of Appeals, entered June 16, 2016 (Docket Nos. 332348 and 333270).


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had loaned defendant the $68,784.50 and that defendant orally or impliedly agreed to repay
plaintiff, but failed to do so. Alternatively, plaintiff argued that he was entitled to payment under
theories of unjust enrichment, promissory estoppel, and fraud.

        Defendant admitted that plaintiff had paid the couple’s living expenses, but denied that
plaintiff ever gave her a loan or that they had an agreement for defendant to repay plaintiff for
living expenses. Defendant moved for summary disposition under MCR 2.116(C)(8) and
(C)(10). In support of her motion, defendant presented the court with numerous text messages
between her and defendant tending to support her theory that plaintiff had paid the expenses
gratuitously. Plaintiff did not challenge the authenticity of the text messages and offered no
other documentary evidence to support his causes of action.

        The trial court granted summary disposition in defendant’s favor on all counts.
Regarding the breach of contract claim, the trial court awarded summary disposition under MCR
2.116(C)(10), concluding that the parties enjoyed a meretricious relationship and plaintiff had
failed to present any evidence from which plaintiff could rebut the presumption of gratuitous
intent. The trial court further concluded, under MCR 2.116(C)(8), that no factual development
could establish that defendant’s retention of the benefit would be inequitable and dismissed the
unjust enrichment claim. Regarding the promissory estoppel claim, under MCR 2.116(C)(8), the
trial court concluded that no factual development could establish any promise made by defendant
or plaintiff’s reliance on any promise. Finally, concerning the fraud claim, the trial court found
under MCR 2.116(C)(8), that no factual development could establish that defendant made
knowingly or recklessly a false material representation inducing plaintiff’s reliance and injury.

       On defendant’s motion, at a later hearing, the trial court ordered plaintiff to pay defendant
the sum of $17,531.25 in attorney fees and $126.07 in costs as a sanction for filing a frivolous
lawsuit under MCL 600.2591 (court shall award prevailing party costs and fees incurred in
defense of frivolous civil action) and MCR 2.114 (attorney’s signature certifies the document is
well-grounded in fact and law).

                                          II. ANALYSIS

        We review de novo the trial court’s grant of summary disposition. Ardt v Titan Ins Co,
233 Mich App 685, 688; 593 NW2d 215 (1999). A court properly grants a motion for summary
disposition pursuant to MCR 2.116(C)(10) where there is no genuine issue of 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 court properly grants a motion for summary
disposition pursuant to MCR 2.116(C)(8) when, considering only the pleadings, the claims
alleged are so clearly unenforceable as a matter of law that no factual development could
possibly justify recovery. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999).

A.     Summary Disposition

       Plaintiff’s Breach of Contract Claim. Plaintiff first argues that the trial court erred in
granting defendant’s motion for summary disposition on plaintiff’s breach of contract claim. We
disagree.



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        This Court will only enforce an agreement made during the course of a meretricious
relationship upon proof of additional consideration beyond the relationship itself. Featherston v
Steinhoff, 226 Mich App 584, 588; 575 NW2d 6 (1997). Such an “agreement must be either
express or implied in fact. This Court will not allow recovery based on contracts implied in law
or quantum meruit.” Id. “[S]ervices rendered during a meretricious relationship are presumably
gratuitous. To overcome this presumption, plaintiff must show that [he] expected compensation
from defendant at the time [he] rendered the services and that defendant expected to pay for
them.” Id. at 589.

        Plaintiff argues that the trial court erred by finding that the parties enjoyed a meretricious
relationship during the time plaintiff paid defendant’s living expenses. The phrase “meretricious
relationship” is defined in Black’s Law Dictionary (8th ed, p 1009) to mean “a stable, marriage-
like relationship in which the parties cohabit knowing that a lawful marriage between them does
not exist.” An examination of this Court’s opinions utilizing the phrase “meretricious
relationship” reveals that this Court accords the phrase the same meaning as set forth in Black’s
Law Dictionary. See, e.g., Featherston, 226 Mich App 584; Carnes v Sheldon, 109 Mich App
204; 311 NW2d 747 (1981); Roznowski v Bozyk, 73 Mich App 405; 251 NW2d 606 (1977);
Tyranski v Piggins, 44 Mich App 570; 205 NW2d 595 (1973).

       In his complaint and briefing to the lower court, plaintiff admitted that the parties lived
together as a couple, along with defendant’s children. Moreover, in the text messages produced
by defendant, plaintiff stated numerous times that he believed he was living as a “family” with
defendant and her minor children. Given plaintiff’s admissions, we agree with the trial court that
there was no question that plaintiff and defendant were involved in a meretricious relationship
during the relevant time period.

        Because the parties were engaged in a meretricious relationship, plaintiff’s payment for
defendant’s living expenses was properly presumed to be gratuitous, and plaintiff bore the
burden to produce evidence rebutting that presumption. Plaintiff, however, produced no such
evidence. Rather, defendant presented the trial court with numerous text messages indicating
plaintiff’s gratuitous intent. In those messages, plaintiff professed his love for defendant,
indicated that he “chose to provide” for defendant and her children, stated that he “never kept
score or made any demands,” and repeatedly talked about coming together as a family.

        Plaintiff did not dispute the authenticity of these messages. Rather, plaintiff pointed to
other messages he argues evidence the parties’ alleged agreement. Having reviewed these
messages, we are unable to find any evidence of any agreement. Defendant thanks plaintiff for
making certain payments and expresses regret that plaintiff had to provide for her, but nowhere
in the messages relied upon by plaintiff does defendant ever promise to pay defendant back.

       Accordingly, we conclude that plaintiff failed to rebut the presumption of gratuity, and
that the trial court properly dismissed plaintiff’s breach of contract claim under MCR
2.116(C)(10).

       Plaintiff’s Claims for Unjust Enrichment, Promissory Estoppel, and Fraud. Plaintiff next
argues that the trial court erred in granting defendant’s motion for summary disposition as to his
remaining claims of unjust enrichment, promissory estoppel, and fraud. We disagree.

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        Unjust enrichment is an equitable doctrine wherein courts enforce a fictional contract
implied in law to ensure justice is obtained. Kammer Asphalt Paving Co, Inc v East China Twp
Schools, 443 Mich 176, 185-186; 504 NW2d 635 (1993). Promissory estoppel is likewise a
contract implied in law. See Martin v East Lansing Sch Dist, 193 Mich App 166, 178-180; 483
NW2d 656 (1992) (characterizing promissory estoppel as a claim in equity). Accordingly,
because agreements made between parties in a meretricious relationship cannot be enforced upon
a contract implied in law, Featherston, 226 Mich App at 588, the trial court properly dismissed
plaintiff’s claims of unjust enrichment and promissory estoppel.2

        Regarding plaintiff’s claim for fraud, plaintiff must show that he detrimentally relied on a
false representation and that defendant made such a statement knowing that it was false, or
recklessly without knowledge of its truth, with the intent that plaintiff rely upon that
representation. Zaremba Equipment, Inc v Harco Nat’l Ins Co, 280 Mich App 16, 38-39; 761
NW2d 151 (2008). Plaintiff never alleged any material misrepresentation made by defendant,
save for defendant’s alleged promise to repay him. Yet, a “mere broken promise does not
constitute fraud, nor is it evidence of fraud.” Marrerro v McDonnell Douglas Capital Corp, 200
Mich App 438, 444; 505 NW2d 275 (1993). Accordingly, the trial court properly dismissed
plaintiff’s claim for fraud under MCR 2.116(C)(8).

B.     Attorney Fees and Costs

        Next, plaintiff argues that the trial court improperly awarded defendant attorney fees and
costs in the amount of $17,657.32. We review the trial court’s determination that an award of
attorney fees is appropriate for clear error. Bronson Health Care Group, Inc v Titan Ins Co, 314
Mich App 577, 585; 887 NW2d 205 (2016). If an award of attorney fees is appropriate, the
amount awarded is reviewed for an abuse of discretion. Joerger v Gordon Food Service, Inc,
224 Mich App 167, 177-178; 568 NW2d 365 (1997).

        Plaintiff argues that the trial court improperly awarded defendant attorney fees pursuant
to the offer-of-judgment rule, MCR 2.405, because defendant made an offer of judgment only as
to three of the four counts of the complaint. After reviewing the record, however, we find no
evidence that the trial court awarded any attorney fees under MCR 2.405. Rather, the trial court
determined that the lawsuit was frivolous under MCL 600.2591 (court shall award prevailing


2
  Despite the trial court’s characterization of its ruling as granting summary disposition under
MCR 2.116(C)(8), we find that the situation at hand better lends itself to a grant of summary
disposition under MCR 2.116(C)(10). While it is true that, as a matter of law, a person involved
in a meretricious relationship cannot maintain an action based on a contract implied in law, in
this case, both plaintiff’s admissions and defendant’s documented text messages were considered
by the trial court when it properly determined that plaintiff and defendant were in a meretricious
relationship. “[T]his Court may affirm for reasons other than those stated by the court below
when there is sufficient support in the record,” Groves v Dep’t of Corrections, 295 Mich App 1,
13 n 3; 811 NW2d 563 (2011), and, in our view, the trial court’s factual inquiry renders summary
disposition more appropriate under MCR 2.116(C)(10) than (C)(8).



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party costs and fees incurred in defense of frivolous civil action) and MCR 2.114 (attorney’s
signature certifies the document is well-grounded in fact and law). We find that the award was
appropriate.

        Plaintiff’s own pleadings admit that he was involved in a meretricious relationship with
defendant. Nevertheless, plaintiff still pled and argued two theories of implied-in-law contracts
that cannot stand in the face of that relationship. Therefore, regarding plaintiff’s claims of unjust
enrichment and promissory estoppel, it is clear to this Court that plaintiff’s position was “devoid
of arguable legal merit.” MCL 600.2591(3)(iii). Moreover, plaintiff repeatedly alleged that
defendant promised to repay the payments, but provided no documentary support whatsoever
supporting that allegation. This failure was fatal to his claims of breach of contract and fraud
and clearly establishes that plaintiff “had no reasonable basis to believe that the facts underlying
[his] position were in fact true.” MCL 600.2591(3)(ii). Plaintiff is an attorney and represented
himself in this matter. Given the serious factual and legal inadequacies in plaintiff’s pleadings,
plaintiff could not certify that the pleadings were “well-grounded in fact and warranted by
existing law or a good-faith argument for the extension, modification, or reversal of existing
law.” MCR 2.114(D)(2).

       Plaintiff’s failure to present any evidence or legal argument reasonably supporting his
claims renders the trial court’s award of attorney fees wholly appropriate under both MCL
600.2591 and MCR 2.114. Moreover, the trial court did not abuse its discretion in determining
the amount of attorney fees awarded to defendant. Plaintiff stipulated to the reasonableness of
the hourly rate awarded to defendant, and the trial court properly reduced the number of hours
requested for work that could have been performed by a less-experienced lawyer.

       Affirmed.



                                                              /s/ Michael F. Gadola
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Brock A. Swartzle




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