                           STATE OF MICHIGAN

                            COURT OF APPEALS



SUSAN C. HRIT,                                                         UNPUBLISHED
                                                                       February 3, 2015
               Plaintiff-Appellant,

v                                                                      No. 317988
                                                                       Oakland Circuit Court
MAUREEN J. MCKEON,                                                     LC No. 2013-133374-CK

               Defendant-Appellee.


Before: JANSEN, P.J., and TALBOT and SERVITTO, JJ.

PER CURIAM.

        In this action to partition real property, plaintiff Susan C. Hrit (plaintiff) appeals by right
the circuit court’s order of August 14, 2013, granting summary disposition in favor of defendant
Maureen J. McKeon (defendant) pursuant to MCR 2.116(C)(8). Plaintiff also challenges the
circuit court’s denial of her motion to amend the complaint. We affirm in part, reverse in part,
and remand for further proceedings consistent with this opinion.

                                                   I

       Defendant’s family had owned a certain parcel of real property—commonly known as 63
Hulbert, White Lake, Michigan (the property)—for many years. The property is situated on
Oxbow Lake in White Lake Township. Defendant purchased the property from her mother in
1986. In 1989, defendant razed the house on the property; she subsequently built a new house on
the property in 1990.

        Plaintiff and defendant were involved in a same-sex relationship for more than 30 years.
In 1994, plaintiff began living with defendant in the house on the property. By way of a
warranty deed executed on April 13, 2003, defendant conveyed the property to herself and
plaintiff “as joint tenants with full rights of survivorship.” Thereafter, plaintiff and defendant
each owned an undivided one-half interest in the property, holding joint life estates with dual
contingent remainders. See Albro v Allen, 434 Mich 271, 275-276; 454 NW2d 85 (1990).

        On April 11, 2013, plaintiff commenced the present action in the Oakland Circuit Court
by filing a one-count complaint to partition the property. Plaintiff alleged that her relationship
with defendant had ended and that she was no longer living in the house on the property. She
alleged that, because the parties’ relationship had ended, it was “impossible” for them to
continue to jointly possess and enjoy the property.

                                                 -1-
        Plaintiff requested that the circuit court enter an order partitioning the property. She
explained that “because the subject property is a single building, partition in-kind is impractical,
if not impossible.” Accordingly, plaintiff proposed that the circuit court (1) order a sale of the
property and divide the proceeds equitably between the parties, or alternatively (2) order
defendant to buy out plaintiff’s one-half interest for fair market value. Lastly, plaintiff sought a
restraining order enjoining defendant from damaging the property and requested that the circuit
court order defendant to pay her rent during the pendency of the proceedings.

         Concurrently with her answer, defendant filed a motion for summary disposition pursuant
to MCR 2.116(C)(8). Defendant argued that plaintiff’s complaint failed to state a claim upon
which relief could be granted. Defendant first contended that because she and plaintiff owned
the property “as joint tenants with full rights of survivorship,” the joint tenancy was
“indestructible” and could not be partitioned. Defendant further argued that even if the life-
estate portion of plaintiff’s one-half interest could legally be partitioned, as suggested by Albro,
434 Mich at 281-282, 287, this would not be a viable remedy because there was “no practical
market” for plaintiff’s joint life estate. Defendant questioned why anyone would purchase a joint
life estate that would end upon the death of plaintiff or defendant, both in their sixties at the time
this action was filed.

        On July 23, 2013, plaintiff moved to amend her complaint. Plaintiff argued that “an
adequate remedy at law does not exist in this matter” and requested that she “be permitted to
amend her Complaint to add counts seeking equitable relief.” Plaintiff attached a Proposed First
Amended Complaint containing her original claim for partition, but also setting forth new claims
of (1) quantum meruit, (2) breach of implied contract, (3) “forcible exclusion,” (4) conversion,
and (5) intentional infliction of emotional distress.1

        That same day, July 23, 2013, plaintiff also filed a “motion for temporary relief and for
asset injunction,” in which she alleged that defendant had excluded her from the house on the
property by changing the locks and refusing to provide her a key. Plaintiff argued that the circuit
court should enjoin defendant from committing waste on the property and order defendant to pay
her monthly rent.

       Plaintiff responded to defendant’s motion for summary disposition. In response, plaintiff
argued that the parties’ joint life estates could be partitioned under Albro without affecting the
dual contingent remainders, which would remain intact.

       In her reply, defendant argued that plaintiff had misapprehended the law. Defendant
appeared to acknowledge that, under Albro, the parties’ joint life estates could be partitioned
independently of the dual contingent remainders. However, relying in part on Wengel v Wengel,


1
  Contrary to plaintiff’s assertion in her motion to amend, not all of these proposed additional
claims were equitable in nature. Although quantum meruit is an equitable claim, breach of
implied contract, conversion, and intentional infliction of emotional distress are legal claims.
Plaintiff’s proposed claim of “forcible exclusion” is not a recognized cause of action in
Michigan, but most closely resembles an equitable claim to quiet title.


                                                 -2-
270 Mich App 86, 105; 714 NW2d 371 (2006), defendant contended that a forced sale would be
impossible in this case because there was simply no market for the joint life estates which could,
in concept, last only 24 hours in the event that plaintiff or defendant died the following day.2
Moreover, defendant argued that plaintiff’s complaint had sought a full partition “of the property
as a whole without reference to the life estate[s] or contingent remainders” and that plaintiff had
therefore, in effect, requested a partition of both the joint life estates and the dual contingent
remainders. Defendant argued that this was not permitted by law.

        Defendant argued that plaintiff’s motion to amend should be denied because (1)
plaintiff’s proposed additional claims would cause undue delay, and (2) the amendment would be
futile because plaintiff was seeking to obtain property-division relief akin to that granted in a
divorce even though the parties were never married. Defendant also argued that plaintiff’s
Proposed First Amended Complaint failed to state legally cognizable claims. In particular,
defendant argued that plaintiff had chosen to end her relationship with defendant and had
voluntarily moved out of the house, that plaintiff had left the property of her own free will, that
plaintiff had keys to the home, that plaintiff was free to reenter the home at any time, and that
defendant had not acted in an outrageous manner. Defendant raised substantially similar
arguments in her response to plaintiff’s “motion for temporary relief and for asset injunction.”

        The circuit court heard oral argument on August 14, 2013. The court noted that it would
hear the parties’ arguments concerning defendant’s motion for summary disposition before
considering plaintiff’s outstanding motions. Defendant’s attorney argued that partition was not
an appropriate remedy because the life estates were virtually unmarketable and would cease to
exist upon the death of either original joint tenant, at which time the surviving joint tenant would
take the entirety of the property in fee simple to the exclusion of any purchaser of one of the life
estates. Defense counsel argued that “that’s not a practical resolution. There is no available
remedy here.” Defense counsel further argued that it would be impossible to partition the entire
property as plaintiff had requested in her complaint because the dual contingent remainders
could not be destroyed. Counsel reiterated that plaintiff’s pleadings had not differentiated
between the life estates and the dual contingent remainders, but had merely sought “a partition of
the whole property.”

        Plaintiff’s counsel, citing Albro, 434 Mich at 281-282, 287, pointed out that the life-estate
components of the parties’ interests could be partitioned without doing violence to the dual
contingent remainders, which would continue in force until the death of one of the two original
joint tenants. Counsel appeared to agree with the circuit court’s concern that plaintiff might not
be able to sell her life estate to anyone, but argued that other equitable remedies such as quantum



2
  In Wengel, 270 Mich App at 105, this Court held that although one joint tenant’s life-estate
interest could be lost to the other joint tenant through adverse possession, the dual contingent
remainders could not be lost or destroyed and would remain intact. The Wengel Court noted that
the continuing existence of the dual contingent remainders could “hinder [one joint tenant’s]
ability to convey or alienate [his or her life-estate portion of] the property” because the life estate
would necessarily end upon the death of one of the original joint tenants. Id.


                                                 -3-
meruit would be available in such a situation. This, counsel argued, was why the circuit court
should grant plaintiff’s motion to amend the complaint.

        With respect to plaintiff’s motion to amend the complaint, counsel argued that equitable
relief was “absolutely necessary in this case” because plaintiff “has lots of money tied up in that
house. She needs to get her equity out of the house.” Plaintiff’s counsel took issue with
defendant’s assertion that plaintiff had not been excluded from the property. Counsel insisted
that defendant had changed the locks and had kept plaintiff from entering the home. Plaintiff’s
attorney then made several petty accusations concerning defendant’s rude behavior, cleanliness,
and housekeeping skills. The circuit court remarked, “This is not family court. . . . Michigan
does not recognize same sex marriages.” The circuit court continued:

              I’m a little perplexed as to how—I mean, in essence I know what you’re
       asking for, you’re asking for [plaintiff’s] contributions to be repaid to her.

                                               ***

               [B]ut how are the claims that you’re making, or you wish to make in your
       amended complaint, cognizable under the law as it applies, not to family
       issues . . . [but] to civil issues?

        Defendant’s attorney noted that plaintiff and defendant would remain joint tenants until
one of them died, at which point the survivor would take the entirety of the property in fee
simple absolute. He argued that “[n]othing will change that, nothing has changed it.” Defense
counsel suggested that all of plaintiff’s proposed additional claims were simply attempts to
obtain a “marital-like dissolution and division of the assets” and that the additional claims would
have nothing to do with the core issue in this case—namely, whether the joint tenancy could be
partitioned under Michigan law. Plaintiff’s attorney responded:

                [T]o characterize this as trying to get marital relief in a non-marital union,
       it’s just not true, that’s not what we’re trying to do. We’re trying to solve an issue
       here between the parties. That’s what a court of equity is to do and I think
       amending the complaint will get to equity in this case, so we’re asking you to
       allow us to amend the complaint, your Honor.

Plaintiff’s attorney again argued that her client had been locked out of the house and that
defendant therefore owed plaintiff rent accruing since the date of her alleged wrongful ejectment.
The circuit court informed plaintiff’s attorney that, with the exception of quantum meruit, “the
claims that you wish to make in your amended complaint are not equitable claims.”

       The circuit court then ruled from the bench:

               Here, the property was conveyed by warranty deed containing express
       survivorship language, thus making the parties joint tenants with full rights of
       survivorship. Because the granting instrument conveyed indestructible dual
       contingent remainders and because plaintiff seeks partition of the whole property,
       the claims fails as a matter of law. Although partial partition is allowed through


                                                -4-
       the conveyance of a life estate, such partition does not affect the contingent
       remainders. . . . Wengel, 270 Mich App [at] 102[.]

               Plaintiff has not requested partial partition in this case, but even if she had,
       partition of a life estate is not a viable remedy because such an interest is not truly
       marketable. For these reasons the Court will grant summary disposition in favor
       of defendant pursuant to MCR 2.116(C)(8).

              The Court is denying plaintiff’s request to amend the complaint because
       amendment would be futile in this instance. Plaintiff seeks to add new claims
       which fail as a matter of law because she has not been deprived of her interest in
       the property, and further, the Court of Appeals has held that in cases of non-
       married couples recovery, based on contracts implied in law or quantum meruit is
       not permitted, because to do so would essentially resurrect common-law
       marriage. . . .

               Again, plaintiff has presented no evidence that her interest in the subject
       property has been interfered with or otherwise harmed, and therefore, the request
       for injunctive relief is also denied.

       On August 14, 2013, the circuit court entered an order granting defendant’s motion for
summary disposition under MCR 2.116(C)(8) “for the reasons stated on the record.” The circuit
court denied plaintiff’s motions to amend the complaint and for injunctive relief in the same
order.

                                                  II

        We review de novo the circuit court’s decision to grant a motion for summary disposition
pursuant to MCR 2.116(C)(8). Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d
201 (1998). A motion for summary disposition brought under subrule (C)(8) “tests the legal
sufficiency of the claim on the pleadings alone to determine whether the plaintiff has stated a
claim on which relief may be granted.” Spiek, 456 Mich at 337. “The motion must be granted if
no factual development could justify the plaintiff[’s] claim for relief.” Id.

        An action to partition land is equitable in nature. MCL 600.3301; In re Temple Marital
Trust, 278 Mich App 122, 141; 748 NW2d 265 (2008). Such actions are reviewed de novo. Id.
at 141-142. We review for an abuse of discretion the circuit court’s denial of a motion to amend
the complaint. Franchino v Franchino, 263 Mich App 172, 189; 687 NW2d 620 (2004).

                                                 III

        In Michigan, there are two types of joint tenancies: (1) standard or ordinary joint
tenancies, and (2) joint tenancies with full rights of survivorship. Wengel, 270 Mich App at 94.
Parties who own property as joint tenants with full rights of survivorship hold joint life estates
with dual contingent remainders. Albro, 434 Mich at 275. The dual contingent remainders
cannot be destroyed by the act of either cotenant. Id. at 279. Although the life estates may be
partitioned, this does not affect the dual contingent remainders, which remain intact. Id. at 282.
The dual contingent remainders are not subject to partition. Id. at 284.

                                                 -5-
        “All persons holding lands as joint tenants or as tenants in common may have those lands
partitioned.” MCL 600.3304. Partition is generally implemented by physically dividing the
property so that each cotenant may obtain possession of a separate, sole estate in specific real
estate. 2 Cameron, Michigan Real Property Law, § 30.19, p 1792. “Physical division of the
jointly held property is the preferred method of partition.” Albro, 434 Mich at 284. Only if an
equitable in-kind division of the property cannot be achieved should the court order the property
sold and divide the proceeds. Id.; see also MCR 3.401(B).

        As an initial matter, we note that plaintiff is incorrect to argue that the term “partial
partition” does not exist in Michigan law. In Wengel, 270 Mich App at 102, this Court stated
that “[a]lthough a joint tenant with rights of survivorship can achieve partial partition through
conveyance of the life estate, the partition does not affect the contingent remainders.” (Emphasis
added). In other words, the term “partial partition” has been used by this Court to describe the
partitioning of the joint life estates (but not the dual contingent remainders, which cannot be
partitioned) that are held by joint tenants with full rights of survivorship.

        Under Albro, 434 Mich at 287, plaintiff was theoretically entitled to a partition of the life-
estate portions of the parties’ joint ownership interests. But as even plaintiff admitted in her
pleadings below, the property at issue in this case (a lake house) was simply not amenable to a
physical, in-kind division. Unlike in Albro, where the commercial property in question could be
divided into separate, marketable parcels, the property in the instant case consists of a single
house and cannot be physically divided without causing inconvenience and prejudice to the
parties. See Butler v Roys, 25 Mich 53, 62 (1872).

        If the property cannot be physically divided without causing undue prejudice, the court
may order the premises sold in lieu of partition. MCL 600.3332; MCR 3.401(B). However,
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. Albro, 434 Mich at 286-287 (noting that “a party may alienate his
undivided interest in a joint life estate” but that this does not affect the dual contingent
remainders). See also 1 Cameron, Michigan Real Property Law, § 9.11, p 323. Accordingly, we
conclude that a sale of the premises in lieu of partition is not a reasonably available option in this
case.

        As in Wengel, 270 Mich App at 106, the remedy for plaintiff in this case is “to refrain
from engaging in a costly legal battle or other confrontation with [the] occupying life tenant,
deciding instead to take peaceful possession by invoking . . . her rights predicated on the
contingent remainder upon the death of the life tenant.” This remedy, of course, requires that
plaintiff survive defendant and may therefore seem wholly unsatisfactory. Nonetheless, on the
facts of this case, it is the only real remedy available.

        The property could not be reasonably physically partitioned or sold in lieu of partition.
Plaintiff’s complaint failed to state a claim upon which relief could be granted. The circuit court
properly granted summary disposition in favor of defendant.




                                                 -6-
                                                 IV

       We must also consider whether the circuit court properly denied plaintiff’s motion to
amend the complaint to set forth her proposed additional claims. When summary disposition is
granted pursuant to MCR 2.116(C)(8), (9), or (10), the circuit court must give the parties an
opportunity to amend their pleadings in accordance with MCR 2.118 unless the amendment
would not be justified. MCR 2.116(I)(5). In her motion to amend, plaintiff sought to add new
claims of (1) quantum meruit, (2) breach of implied contract, (3) “forcible exclusion,” (4)
conversion, and (5) intentional infliction of emotional distress. The circuit court concluded that
each of these proposed additional claims was either futile or unenforceable as a matter of law.
We agree in part and disagree in part.

       Plaintiff’s proposed claims of conversion and intentional infliction of emotional distress
were without merit. In plaintiff’s Proposed First Amended Complaint, she alleged that defendant
had converted the property. Real property cannot be the subject of a claim of common-law
conversion. Eadus v Hunter, 268 Mich 233, 237; 256 NW 323 (1934); Embrey v Weissman, 74
Mich App 138, 143; 253 NW2d 687 (1977). Nor did plaintiff plead sufficiently outrageous
conduct by defendant to support her claim of intentional infliction of emotional distress. Tope v
Howe, 179 Mich App 91, 107; 445 NW2d 452 (1989); see also Doe v Mills, 212 Mich App 73,
92; 536 NW2d 824 (1995) (noting that “it is initially for the court to determine whether the
defendant’s conduct reasonably may be regarded as so extreme and outrageous as to permit
recovery”). The court properly denied plaintiff’s motion to amend with respect to these two
proposed claims.

        There was a bona fide factual dispute with regard to whether defendant changed the locks
and locked plaintiff out of the house. Plaintiff claimed at all times throughout the litigation of
this case that defendant had kept her off the premises by changing the locks. Defendant denied
this and asserted that plaintiff had a key. Either way, however, it is beyond dispute that plaintiff
and defendant, as the possessors of joint life estates, had equal rights to access and enjoy the
property. While plaintiff’s proposed “forcible exclusion” claim is not a recognized cause of
action in Michigan, it most closely resembles a quiet-title claim. See MCL 600.2932(1). “It is
well settled that the gravamen of an action is determined by reading the complaint as a whole,
and by looking beyond mere procedural labels to determine the exact nature of the claim.”
Adams v Adams (On Reconsideration), 276 Mich App 704, 710-711; 742 NW2d 399 (2007). We
conclude that plaintiff’s “forcible exclusion” claim was actually a claim to quiet title. Id. at 711-
712. Given the genuine factual dispute concerning defendant’s conduct and plaintiff’s ability to
access the property, the circuit court erred by concluding that it would be futile to allow plaintiff
to add this quiet-title claim.

       Similarly, the court erred by determining that plaintiff’s proposed claims of quantum
meruit and breach of implied contract were unenforceable as a matter of law because they
somehow arose from the now-repudiated doctrine of common-law marriage. Contrary to the
conclusion of the circuit court, plaintiff’s proposed claims of quantum meruit and breach of
implied contract were not based on the doctrine of common-law marriage or the parties’
meretricious relationship. Plaintiff was not claiming that defendant owed her something of value
under a contract implied in law arising from the sexual relationship. Rather, plaintiff was
claiming that she had the right to equal access and enjoyment of the property under the terms of

                                                -7-
the warranty deed and that she was legally entitled to compensation for the loss of that right
under a contract implied in fact. These are claims that any cotenant could have made under like
circumstances; they had nothing to do with the parties’ same-sex relationship. See Featherston v
Steinhoff, 226 Mich App 584, 588-591; 575 NW2d 6 (1997). Unlike the plaintiff in Featherston,
who gratuitously performed services for the defendant during the course of a meretricious
relationship, plaintiff in the instant case actually paid for one-half of the property and her
proposed claims were based on sufficient independent consideration. Id. at 588.

                                                V

        The property could not be reasonably partitioned or sold in lieu of partition. We affirm
the circuit court’s grant of summary disposition in favor of defendant with respect to plaintiff’s
partition claim.

        We affirm in part and reverse in part the circuit court’s denial of plaintiff’s motion to
amend the complaint. Plaintiff’s proposed claims of conversion and intentional infliction of
emotional distress were without merit. However, we remand to the circuit court with instructions
to allow plaintiff to amend her complaint and pursue her claims of quiet title, quantum meruit,
and breach of contract implied in fact.

        Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction. No taxable costs pursuant to MCR 7.219, neither
party having prevailed in full.

                                                            /s/ Kathleen Jansen
                                                            /s/ Michael J. Talbot
                                                            /s/ Deborah A. Servitto




                                               -8-
