                             STATE OF MICHIGAN

                               COURT OF APPEALS


JOWHARA ZINDANI and GAMEEL ZINDANI,                                      UNPUBLISHED
                                                                         March 20, 2018
                  Plaintiff-Appellees,

v                                                                        No. 337042
                                                                         Wayne Circuit Court
NAGI ZINDANI and ANTESAR ZINDANI,                                        LC No. 15-008059-CZ

                  Defendant-Appellants.


Before: GLEICHER, P.J., and BOONSTRA and TUKEL, JJ.

PER CURIAM.

       Defendants appeal by right the judgment of the trial court, entered after a bench trial,
holding defendants jointly and severally liable to plaintiff Gameel Zindani in the amount of
$77,441.31.1 We affirm with regard to defendant Nagi Zindani, but reverse with regard to
defendant Antesar Zindani.

                      I. PERTINENT FACTS AND PROCEDURAL HISTORY

      Plaintiffs Jowhara and Gameel Zindani and defendant Antesar Zindani are siblings.
Defendant Nagi Zindani is their father.2

       In 2002, Gameel began attending Michigan State University. He testified at trial that he
spoke with Nagi about purchasing a home, rather than continuing to rent one, because he
believed that he would continue to reside in East Lansing after he finished his schooling.
Gameel testified that between 2002 and 2005, he gave Nagi approximately $36,400 of his
student loan funds to use as a down payment on the purchase of a home. Nagi purchased a home
on River Terrace Drive in East Lansing in 2005. Gameel testified that he was intimately
involved in selecting the home and that he believed at all times, based on his conversations with
Nagi, that the home would eventually be his. Gameel further testified that he had expected his



1
 The judgment also reflects that the trial court ordered “[n]o award for Plaintiff Johwara [sic]
Zindani.” That part of the judgment is not at issue on appeal.
2
    Because all parties share a surname, this opinion will refer to the parties by their first names.


                                                    -1-
name to be placed on the deed to the home at closing, but that Nagi insisted at the closing that
the home be titled in his name alone. Gameel testified that Nagi indicated that having Gameel’s
name on the deed might negatively impact Gameel’s ability to receive student loans, and that
Nagi and Gameel agreed that Nagi “would serve as sort of the proxy on the [mortgage] loan,”
and that Gameel “would be the ultimate owner, if you will, of the home.”

        Gameel moved into the home immediately after closing and lived there until 2010.
During that time, Gameel gave Nagi approximately $39,000 in additional student loan funds to
use for repairs and updates to the home. While Gameel lived in the home, it was also occupied
by rent-paying tenants. Gameel collected rent payments from those tenants and turned them over
to Nagi. Gameel also testified that he was involved in maintaining the property and hiring
contractors to do improvements on the property using his student loan money.

        In 2009, unbeknownst to Gameel, Nagi transferred ownership of the home via quitclaim
deed to himself, Antesar, and his then-wife, Amrieh Zindani. 3 Notwithstanding evidence of
cancelled checks, Nagi testified that he never received any student loan funds from Gameel.
However, he later stated that it was “plausible” that he might have received some funds. Nagi
denied ever telling Gameel that the home would one day be his, and he stated that he put Antesar
on the deed to the home because she had given him money to pay the mortgage and was helpful
to him.

        Jowhara testified that she lived in the home with Gameel from 2006 to 2009 while
attending Michigan State University. She testified that she gave Gameel some of her student
loan funds to give to Nagi because Nagi was “after” him for money, although she did not know
how Nagi ultimately used the money. She also testified that she gave some of her student loan
funds to Gameel to use on improvements to the home, including paying a contractor to configure
the basement as a separate unit so that she could live separately from male tenants as required by
her culture.

        Antesar testified that she had paid taxes on the home. This included claiming a principal
residence tax exemption for the home, although she never used the property as her principal
residence. Antesar testified to her belief that the home was purchased so that any of the children
could use it while studying at Michigan State University or living in the East Lansing area, and
for use as a rental property.

         Plaintiffs filed suit against defendants and Amrieh in 2015, alleging that the home had
been ordered to be sold as part of Nagi and Amrieh’s divorce, and seeking $85,000 in money
damages based on theories of promissory estoppel, unjust enrichment, and fraud. After a bench
trial, the trial court found that Nagi’s testimony was contradictory and not credible. The court
further found that Antesar had made misrepresentations in filing for a tax exemption for the



3
  Amrieh is the mother of the three children and was a party to the proceedings below, but
reached a settlement with plaintiffs and was dismissed from the suit by order of the trial court on
January 25, 2017. She is not a party to this appeal.


                                                -2-
property despite not using it as a primary residence, and stated that it would consider her
testimony “very minimally.”

        The trial court determined that Gameel had provided funds to Nagi to purchase and
improve the home based on Nagi’s representations that Gameel would ultimately own it. The
trial court also found that defendants had been unjustly enriched by Gameel’s provision of funds
for improvements to the home; additionally, Nagi was enriched by collecting all of the rent from
tenants of the property, which was frequently in excess of the amount of the mortgage payment.
While the trial court found that Nagi had made promises that Gameel relied upon to his
detriment, it declined to find clear and convincing evidence of fraud. With regard to Jowhara,
the trial court held she had not proven that she had provided Nagi with any funds in excess of
living expenses. Finally, the trial court noted that Antesar currently had a 50% interest in the
home. The trial court entered judgment as stated, with the amount determined from the initial
funds for the down payment provided by Gameel as well as funds provided by Gameel for
improvements to the home.4

       This appeal followed.

                                    II. STATUTE OF FRAUDS

        Defendants’ primary argument on appeal is that plaintiffs’ claims were barred by the
statute of frauds. We disagree. Defendants asserted a statute of frauds defense in their answer to
plaintiffs’ complaint, and raised the statute of frauds as an issue at trial. The trial court held that
the statute of frauds did not bar plaintiffs’ claims. This issue is therefore preserved. Gen Motors
Corp v Dep’t of Treasury, 290 Mich App 355, 386: 803 NW2d 698 (2010). We review de novo
as a question of law the trial court’s determination that the statute of frauds did not bar plaintiffs’
claims. Zander v Ogihara Corp, 213 Mich App 438, 441; 540 NW2d 702 (1995).

      In Michigan, the form of a contract for the sale of land is dictated by the statute of frauds.
Zurcher v Herveat, 238 Mich App 267, 277; 605 NW2d 329 (1999). MCL 566.106 provides:

       No estate or interest in lands, other than leases for a term not exceeding 1 year,
       nor any trust or power over or concerning lands, or in any manner relating thereto,
       shall hereafter be created, granted, assigned, surrendered or declared, unless by
       act or operation of law, or by a deed or conveyance in writing, subscribed by the
       party creating, granting, assigning, surrendering or declaring the same, or by some
       person thereunto by him lawfully authorized by writing.

And MCL 566.108 provides in relevant part:


4
  According to a pre-trial order, plaintiffs’ trial exhibits included a list of Gameel’s student loan
disbursements and cancelled checks for those disbursements, as well as an “itemized list of all
items Plaintiffs paid for and supplied to the Property.” These exhibits are not part of the record
provided to this Court, but appear from context to be the basis for the trial court’s calculation of
its damages award.


                                                 -3-
       Every contract for the leasing for a longer period than 1 year, or for the sale of
       any lands, or any interest in lands, shall be void, unless the contract, or some note
       or memorandum thereof be in writing, and signed by the party by whom the lease
       or sale is to be made, or by some person thereunto by him lawfully authorized in
       writing . . . .

“Simply put, therefore, a contract for the sale of land must, to survive a challenge under the
statute of frauds, (1) be in writing and (2) be signed by the seller or someone authorized by the
seller in writing.” Zurcher, 238 Mich App at 277.

        Defendants argue that there was no evidence of a written agreement between Gameel and
Nagi to convey the house to Gameel or to grant Gameel an interest in the property. Defendants
are correct in this assertion; however, they are incorrect in their belief that this fact bars
plaintiffs’ claims. Plaintiffs admitted in their complaint that they had no interest in the home;
nor did they allege that defendants had breached a contract for the sale of the home, ask the trial
court to find that a valid contract existed either for the sale of the home or to convey to plaintiffs
an interest in the home, or seek to have the trial court grant them an interest in the home. Rather,
asserting theories of promissory estoppel, unjust enrichment, and fraud, they alleged that they
were entitled to reimbursement of funds they had provided to Nagi for the purchase, repair, and
updating of the home. The trial court specifically noted that “the Plaintiff’s [sic] here are not
seeking the return of the property.” Further, the trial court did not find that a contract existed
relative to the sale of, or any interest in, the home; rather, the trial court found that Gameel had
detrimentally relied on promises made by Nagi that Gameel would eventually own the home, and
that defendants were unjustly enriched by Gameel’s provision of funds to both purchase and
improve the home.

        The statute of frauds is not applicable to the legal theories under which the trial court
found defendants liable in this case. Defendants argue that plaintiffs should be denied the
equitable remedies of promissory estoppel (detrimental reliance) or unjust enrichment, because
those remedies are not available when a contract is invalidated by the statute of frauds, citing the
general principle that a plaintiff may not receive an equitable remedy if an adequate remedy at
law exists. Tkachik v Mandeville, 487 Mich 38, 46; 790 NW2d 260 (2010). If we understand
defendants correctly, their argument is that plaintiff’s claim essentially is one for breach of
contract, that the law provides a remedy for such claims (although the statute of frauds bars
plaintiff’s specific claim) and that plaintiffs therefore should be denied equitable relief. We
disagree. Our Supreme Court has stated that “estoppel and promissory estoppel have developed
to avoid the arbitrary and unjust results required by an overly mechanist application” of the
statute of frauds. Opdyke Inv Co v Norris Grain Co, 413 Mich 354, 565; 320 NW2d 836 (1982).
Moreover, plaintiffs’ claim is not for breach of contract; this is not a case in which an oral
contract is invalidated by the statute of frauds, as was the case in Zander, 231 Mich App at 445.
Rather, this is a case in which the trial court found that the elements of promissory estoppel were
satisfied, i.e. that a preponderance of the evidence existed that there was

       (1) a promise, (2) that the promisor should reasonably have expected to induce
       action of a definite and substantial character on the part of the promisee, (3)
       which in fact produced reliance or forbearance of that nature, and (4) in
       circumstances such that the promise must be enforced if injustice is to be avoided.

                                                 -4-
       [Joerger v Gordon Food Serv, Inc, 224 Mich App 167, 173; 568 NW2d 365
       (1997).]

Defendants make no argument that these elements were not satisfied, and because a promissory
estoppel claim is not universally barred by the statute of frauds defense, Opdyke Inv Co, 413
Mich at 365, we discern no error in the trial court’s judgment in favor of plaintiffs based on this
theory.

         Defendants similarly do not argue that the elements of unjust enrichment were not
satisfied; rather, they only argue that there was an express (although invalid) contract covering
the same subject matter (interest in or sale of the home) as the unjust enrichment claim. The
elements of unjust enrichment are “(1) the receipt of a benefit by defendant from plaintiff, and
(2) an inequity resulting to plaintiff because of the retention of the benefit by defendant.” See
Belle Isle Grill Corp v Detroit, 256 Mich App 463, 478; 666 NW2d 271 (2003). Where those
elements are satisfied, the law will imply a “quasi contractual obligation, upon which recovery
may be had . . . .” Morris Pumps v Centerline Piping, Inc, 273 Mich App 187, 195; 729 NW2d
898 (2006) (quotation marks and citations omitted). However, an unjust enrichment claim may
not lie if there is an express contract covering the same subject matter. Id.

        Here, the trial court never found that an oral contract existed for the conveyance of the
home or any interest in it. There was no evidence introduced at trial showing that any plaintiff
had such an agreement with any defendant; rather, the evidence only showed that Gameel had
detrimentally relied on Nagi’s promise that Gameel would eventually own the home. The
evidence introduced at trial did not show the necessary “mutual assent or a meeting of the minds
on all the essential terms” needed to find the existence of a contract. Kloian v Domino’s Pizza
LLC, 273 Mich App 449, 453; 733 NW2d 766 (2006). In fact, defendants’ counsel specifically
argued that no contract between Nagi and Gameel was formed because “there was no offer” and
“no consideration” such that “there’s not even a valid promise offer [sic] and acceptance that this
[sic] was a verbal contract of any kind.” And again, plaintiffs were not pursuing a breach of
contract claim or arguing the existence of an oral contract, but rather were seeking
reimbursement of a benefit they had conferred upon defendants that it would be unjust to allow
defendants to retain. See Belle Isle Grill Corp, 256 Mich App at 678. Under these
circumstances, the trial court did not err by holding that the statute of frauds did not prevent
plaintiffs’ recovery on a theory of unjust enrichment, although, as discussed later in this opinion,
we hold that the theory was erroneously applied with respect to Antesar.

                                 III. LIABILITY OF ANTESAR

        Defendants also argue that the trial court erred by holding Antesar jointly and severally
liable for the judgment amount. The parties agree that Antesar’s liability, if any, must stem from
an unjust enrichment theory, as there was no evidence that Antesar made any promises upon
which any plaintiffs detrimentally relied. Whether a claim for unjust enrichment may be
maintained is a question of law that we review de novo. Morris Pumps, 273 Mich App at 193.

        Generally, a third party is not unjustly enriched when it receives a benefit from a contract
between two other parties, where the third party has not requested the benefit or misled the other
parties. Morris Pumps, 273 Mich App at 196, quoting 66 AM Jur 2d, Restitution and Implied

                                                -5-
Contracts, § 32, p 628. Here, as stated, there was no express contract between Gameel and Nagi,
only detrimental reliance and the implied quasi-contractual obligation that arose from Nagi’s
unjust retention of benefits conferred by Gameel. Belle Isle Grill Corp, 256 Mich App at 678;
Joerger, 224 Mich App at 173. Nonetheless, the rationale of Morris Pumps and associated cases
is still applicable. Antesar testified that she received a call from an attorney in 2009 who told her
that if her parents both agreed, she would be deeded an interest in the home, and she told the
attorney “that was perfectly fine.” She further testified that she did not become aware that
Gameel believed that he had a claim related to the home until the instant case was filed. There
were no allegations, there was no evidence, and there was no basis for inferring, that Antesar
ever misled plaintiffs or requested that she receive any of the benefits that Gameel conferred
upon Nagi. Under these circumstances, we conclude that the first element of an unjust
enrichment claim was not satisfied—Antesar did not receive a benefit from plaintiffs, but rather
was conveyed an interest in property by Nagi. See Karaus v Bank of New York Mellon, 300
Mich App 9, 24; 831 NW2d 897 (2012) (stating that “plaintiff has not shown that he conferred a
benefit to Mellon, because Mellon acquired its interest in the property through the assignment of
the mortgage executed by [another party], not through any action of plaintiff”). And further,
because she was “completely uninvolved” in any discussions between Nagi and Gameel, we
cannot say that Antesar’s retention of any benefit was unjust.5 Id. The fact that some of the
value of the property interest that Nagi conveyed to Antesar may have resulted from Nagi’s
unjust enrichment (relative to Gameel) does not make Antesar liable to Gameel absent some
evidence that she requested the benefit or misled Gameel in some way. Morris Pumps, 273 Mich
App at 196 (noting that “not all enrichment is necessarily unjust in nature.”).

        Affirmed with regard to defendant Nagi. Reversed with regard to defendant Antesar.
Neither party having prevailed in full, no costs may be taxed. MCR 7.219A. We do not retain
jurisdiction.



                                                              /s/ Elizabeth L. Gleicher
                                                              /s/ Mark T. Boonstra
                                                              /s/ Jonathan Tukel




5
  The trial court made statements indicating that it believed the quitclaim deed conveying the
property to Antesar may have been defective for lack of consideration. However, the trial court
acknowledged that the issue of the ultimate disposition of the property was not before it.
Nothing in this opinion should be construed as a holding by this Court regarding the chain of title
or the validity of any conveyances of the property at issue.


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