If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

KEVIN THOMAS VAYKO,

Plaintiff-Appellant,

UNPUBLISHED

February 15, 2024

v No. 366503

Washtenaw Circuit Court

JENNIFER TANOURY, LC No. 22-001638-CZ

Defendant-Appellee.

Before: GADOLA, C.J., and BORRELLO and BOONSTRA, JJ.

PER CURIAM.

Plaintiff appeals as of right the order of the Washtenaw Circuit Court granting defendant 

summary disposition of plaintiff’s claims pursuant to MCR 2.116(C)(8). On appeal, plaintiff 

contends the trial court erred in finding plaintiff’s amended complaint failed to state a claim upon 

which relief can be granted. We affirm. 

I. FACTS

Plaintiff filed his complaint in the circuit court alleging breach of contract, and alleging 

that defendant had violated various criminal statutes including MCL 750.174(4) (embezzlement

by agent) and MCL 750.249 (uttering and publishing). Specifically, the complaint asserted 

plaintiff had loaned defendant $7,430 “on the return guarantee of $28,000 via various Bitcoin 

ventures such as Bitcoin mining in addition to Bitcoin Casino winnings, and return from a Walmart 

MoneyCard from Caesar SportsPlay.” Plaintiff further alleged that in partial repayment of this 

loan, defendant presented plaintiff with a check for $3,000, which plaintiff alleged was fraudulent 

and caused plaintiff’s bank to freeze his account. 

Defendant filed an answer asserting that no contract had existed between the parties and 

asserted other defenses. Defendant also filed a motion for a more definite statement pursuant to 

MCR 2.115(A), contending the allegations in plaintiff’s complaint were vague and failed to 

provide defendant reasonable notice of the claims being brought against her. Plaintiff

subsequently filed an amended complaint, adding MCL 600.2919a (allows treble damages for 

embezzlement/conversion) and MCL 600.5807 (setting a 6-year statute of limitations for breach 

of contract) as additional bases for relief. Plaintiff requested actual and punitive damages. 
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Plaintiff filed a motion for summary disposition pursuant to MCR 2.116(C)(9) (opposing 

party has failed to state a valid defense) and MCR 2.116(C)(10) (no genuine issue of material fact), 

arguing defendant had not asserted a valid defense against her obligation to fulfill their agreement 

“to the specific amount of $28,000.” Defendant also filed a motion for summary disposition under 

MCR 2.116(C)(8) and (C)(10), contending plaintiff’s amended complaint failed to state a claim 

upon which relief can be granted. The trial court heard oral argument on both motions. Plaintiff 

argued a valid contract existed between the parties, and defendant’s failure to repay plaintiff 

constituted a breach. Defendant argued that no contract existed between the parties, and 

alternatively if a contract did exist, it was unenforceable because contracts for gambling are void. 

The trial court denied plaintiff’s motion and granted defendant’s motion for summary disposition 

under MCR 2.116(C)(8), reasoning “the plaintiff has failed to... state a valid claim for relief, 

pursuant to [MCL] 750.174, 750.249, 600.5807, or [600.2919a], as cited by plaintiff in the 

amended complaint.” The trial court dismissed the complaint and plaintiff now appeals. 

II. BREACH OF CONTRACT

Plaintiff argues the trial court erred in finding his claims unenforceable as a matter of law. 

Plaintiff asserts he submitted evidence in the form of text messages that establish a contract existed 

between the parties. We disagree.

A. STANDARD OF REVIEW

A trial court’s decision on a motion for summary disposition is reviewed de novo. ElKhalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). “A motion under 

MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the factual allegations in the 

complaint.” Id. (emphasis omitted). Granting a motion under (C)(8) is warranted when “[t]he 

opposing party has failed to state a claim on which relief can be granted.” MCR 2.116(C)(8). 

“When considering such a motion, a trial court must accept all factual allegations as true, deciding 

the motion on the pleadings alone.” El-Khalil, 504 Mich at 160; MCR 2.116(G)(5). If the claims 

alleged are “so clearly unenforceable as a matter of law that no factual development could possibly 

justify recovery[,]” then summary disposition should be granted. Maiden v Rozwood, 461 Mich 

109, 119; 597 NW2d 817 (1999). “A mere statement of a pleader’s conclusions and statements of 

law, unsupported by allegations of fact, will not suffice to state a cause of action.” Varela v 

Spanski, 329 Mich App 58, 79; 941 NW2d 60 (2019). Only factual allegations, not legal 

conclusions, are to be taken as true under MCR 2.116(C)(8). See Lansing Sch Ed Assoc, MEA/NEA 

v Lansing Sch Dist Bd of Ed (On Remand), 293 Mich App 506, 519; 810 NW2d 95 (2011). 

The existence and interpretation of a contract are questions of law that are also reviewed 

de novo. Kloian v Domino’s Pizza LLC, 273 Mich App 449, 452; 733 NW2d 766 (2006). When 

an action is based on a written contract, it is generally necessary to attach a copy of the contract to 

the complaint, such that the contract becomes part of the pleadings a court can consider on a motion 

for summary disposition under MCR 2.116(C)(8). Laurel Woods Apartments v Roumayah, 274 

Mich App 631, 635; 734 NW2d 217 (2007). 

B. ANALYSIS
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Plaintiff’s complaint does not state facts that show a contract existed between the parties. 

The creation of a contract requires an offer and acceptance. Clark v Al-Amin, 309 Mich App 387, 

394; 872 NW2d 730 (2015). An offer is “the manifestation of willingness to enter into a bargain

....” Kloian, 273 Mich App at 453. “Unless an acceptance is unambiguous and in strict 

conformance with the offer, no contract is formed.” Pakideh v Franklin Commercial Mortg 

Group, Inc, 213 Mich App 636, 640; 540 NW2d 777 (1995). “Further, a contract requires mutual 

assent or a meeting of the minds on all the essential terms.” Clark, 309 Mich App at 394, quoting 

Kloian, 273 Mich App at 452-453. 

“A valid contract requires five elements: (1) parties competent to contract, (2) a proper 

subject matter, (3) legal consideration, (4) mutuality of agreement, and (5) mutuality of 

obligation.” AFT Michigan v State of Michigan, 497 Mich 197, 235; 866 NW2d 782 (2015) 

(citation omitted). “The party seeking to enforce a contract bears the burden of proving that the 

contract exists.” Id. quoting Hammel v Floor, 359 Mich 392, 400; 102 NW2d 196 (1960). 

While plaintiff states that a contract existed between the parties, he has not pled facts to 

show there was an offer and acceptance. Plaintiff’s amended complaint does not describe any sort 

of offer made by either plaintiff or defendant, nor does it state there was acceptance of an offer. 

Without an offer and acceptance, we cannot find that either party manifested a willingness to enter 

into a contract. 

Further, plaintiff did not attach any written contract to his complaint. Instead, he purports 

that the agreement was reached in text message conversations between the parties. Plaintiff 

submitted these texts in his Exhibit E, which was filed with plaintiff’s reply to defendant’s answer 

to the amended complaint. Because a reply to an answer is considered part of the “pleadings” in 

a case, MCR 2.110(A)(6), we can consider these text messages when reviewing defendant’s 

motion for summary disposition under MCR 2.116(C)(8). See Laurel Woods Apartments, 274 

Mich App at 635. 

The text messages contained in Exhibit E are insufficient to establish there was an offer 

and acceptance. Plaintiff alleges that the following text exchanges are sufficient to establish a 

valid contract:

1) “Plaintiff: ‘For $10,600’; Defendant: ‘If you send $150” (See page 611); 

2) “Defendant: ‘$100 for $2,000 so 12,950; I alrady [sic] cashed out 9950’” 

(See Page 639); 

3) ‘Plaintiff: ‘$160 for $27,000’; Defendant: ‘Yah’” (see Page 753); 

4) “Defendant: ‘Dude 6,000 is not even half of what I’m giving you when 

it comes not to mention my 2500 check coming tomorrow or Monday as I spoke 

with them’” (See page 870); 

5) “Defendant: ‘Rely on my check til 28,000 come in, its to good to be true 

overnight but believe it will come soon. It’s a good thing I have my check, but I 

can’t give all to you. You only gave me 300...but if you can give me a tad more til 
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it comes in which could be this weekend or latest next week. I can see my mail 

come in a week ahead of time.’” (See page 876); 

6) “Defendant: ‘Just so you know I wouldn’t just leave you in debt for 7k...I 

told you case scenario I will help pay it back as much as I can, but you don’t need 

leave me with the cold shoulder. I understand what position your in especially 

before holidays, I get it. I would be stressed too...but we are supposed to be there 

for each other not just ignore. During the wait I offered good deals on stuff I had, 

told you could have them to sell for profit while we wait and all I ask is for you to 

help me a little. It’s gonna be a tough wait, but like I said.... I have experience in 

Bitcoin shit, the fact that not only is it down right now, one of the biggest exchange 

markets is going bankrupt so it’s gonna be a while’ (See page 922). 

An offer and acceptance cannot be discerned from these communications. Plaintiff’s statement, 

“For $10,000” cannot be construed as an offer because it does not show a willingness to enter into 

a bargain. Kloian, 273 Mich App at 453. And defendant’s reply, “If you send $150,” does not 

establish acceptance because it is ambiguous. The messages establish neither the purpose of the 

purported $10,000 payment to defendant nor the purpose of the $150 payment defendant appears 

to suggest or request in reply. Nowhere in the text conversations does a valid offer and acceptance 

appear. Because we are left wondering what the essential terms of the agreement are, there is no 

mutual assent or meeting of the minds as is required for a valid contract. See Clark, 309 Mich 

App at 394. 

III. CONTRACTS FOR GAMBLING

The trial court did not specify the reason it found plaintiff’s civil claims to be unenforceable 

as a matter of law. It reasoned explicitly only that, “Plaintiff’s claims are so clearly unenforceable 

as a matter of law that no factual development could possibly justify recovery as required under 

MCR [2.116](C)(8).” If the trial court accepted defendant’s alternative argument that contracts 

for gambling are unenforceable under Int’l Recovery Systems and MCL 600.2939(3), we affirm as 

to this basis as well.

A. STANDARD OF REVIEW

Questions of statutory interpretation are reviewed de novo as questions of law. Klooster v 

City of Charlevoix, 488 Mich 289, 295; 795 NW2d 578 (2011). “When the Legislature has 

unambiguously conveyed its intent in a statute, the statute speaks for itself, and judicial 

construction is not permitted.” Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 

34 (2002). “Courts must give effect to every word, phrase, and clause in a statute, and must avoid 

an interpretation that would render any part of the statute surplusage or nugatory.” Id. We give 

undefined terms in a statute their plain and ordinary meanings, and may consult dictionary 

definitions to do so. Id. 

B. ANALYSIS
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“Courts in our state have long held that, as a matter of public policy, contracts made in 

furtherance of gambling are unenforceable, and loans made for gambling purposes cannot be 

recovered.” Int’l Recovery Systems, Inc v Gabler, 208 Mich App 49, 51; 527 NW2d 20 (1994), 

rev’d on reh 210 Mich App 422, 423-424; 527 NW2d 20 (1995).1 This conclusion is supported by 

the language of MCL 600.2939(3), which provides: 

(3) All notes, bills, bonds, mortgages, or other securities or conveyances 

whatever, in which the whole or any part of the consideration, shall be for any 

money or goods won by playing at cards, dice, or any other game whatever, or by 

betting on the sides or hands of such as are gaming, or by any betting or gaming 

whatever, or for reimbursing or repaying any moneys knowingly lent or advanced 

for any gaming or betting, shall be void and of no effect, as between the parties to 

the same, and as to all persons, except such as shall hold or claim under them in 

good faith, and without notice of the illegality of such contract or conveyance. 

[MCL 600.2939(3) (emphasis added)]. 

“It is clear that gambling is contrary to public policy in Michigan, aside from those 

narrowly circumscribed exceptions created by the Legislature.” Int’l Recovery Systems, Inc (On 

Rehearing), 210 Mich App at 423. One example of an exception created by the Legislature is the 

Gaming Act, which governs legalized non-Indian casino gambling in Detroit. See Parise v Detroit 

Entertainment, LLC, 295 Mich App 25, 28; 811 NW2d 98 (2011). As such, if an exception does 

not apply, gambling debts are unenforceable in our courts. Id. See also Gibson v Martin, 308 Mich 

178; 13 NW2d 252 (1944). 

Under Int’l Recovery Systems, “loans made for gambling purposes cannot be recovered.” 

208 Mich App at 51. While plaintiff argues that only a portion of his money was to be used in 

gambling, even accepting that as true the statute forbids, “All notes, bills, bonds, mortgages, or 

other securities or conveyances whatever, in which the whole or any part of the consideration, 

shall be... for reimbursing or repaying any moneys knowingly lent or advanced for any gaming or 

betting ....” MCL 600.2939(3). Therefore, even if only a portion of the money given as 

consideration was used for gambling, it is void under MCL 600.2939(3). 

Plaintiff argues that MCL 600.2939(3) does not apply to his claim because it applies to 

“notes, bills, bonds, mortgages, or other securities or conveyances whatever.” Plaintiff contends 

that because this contract involved cryptocurrency, which he claims is equivalent to money, MCL 

600.29239(1) should apply instead because that pertains to loss of “any money or goods.” MCL 

600.2939(1) provides: 

(1) In any suit brought by the person losing any money or goods, against 

the person receiving the same, when it appears from the complaint that the money 

 

1 The court enforced the contract on rehearing because it was made in Nevada where gambling is 

legal, and plaintiff obtained a judgment from a Nevada court that the Michigan court must honor 

under the Full Faith and Credit Clause though repugnant to public policy against gambling and 

loans made for gambling purposes. Int’l Recovery Systems, Inc, 210 Mich App at 424. 
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or goods came to the hands of the defendant by gaming, if the plaintiff makes oath 

before the court in which such suit is pending, that the money or goods were lost 

by gaming with the defendant as alleged in the complaint, judgment shall be 

rendered that the plaintiff recovered damages to the amount of the said money or 

goods, unless the defendant makes oath that he did not obtain the same, or any part 

thereof by gaming with the plaintiff; and if he so discharges himself, he shall 

recover of the plaintiff his costs; but the plaintiff may at his election, maintain and 

prosecute his action according to the usual course of proceedings in such actions at 

common law.

Plaintiff is misguided. While cryptocurrency may be equivalent to money, plaintiff did not 

lose the money “by gaming with the defendant.” Instead, plaintiff allegedly lent money to the 

defendant that she would use in gambling. A “note” is defined as “a written promise by one party 

to pay money to another party.” Black’s Law Dictionary (11th ed). Here, the arrangement was an 

alleged promise by the defendant to pay plaintiff money as expressed in text messages. Thus, 

taking plaintiff’s factual allegations as true, the “loans” constitute “notes” and thus MCL 

600.2939(3) applies, and MCL 600.2939(1) is inapplicable. The trial court did not err if it found 

plaintiff’s claim unenforceable as a contract for gambling under MCL 600.2939(3)

Plaintiff also relies on two criminal statutes, asserting the defendant violated MCL 

750.174(4) (embezzlement by agent) and MCL 750.249 (uttering and publishing). However, these 

statutes do not provide for a civil remedy or cause of action. See Richardson v Allstate Ins Co, 328 

Mich App 468, 473; 938 NW2d 749 (2019). Therefore, the trial court did not err in granting 

defendant summary disposition as to civil claims founded on these criminal statutes. 

Lastly, plaintiff argues that the trial court erred because it failed to review plaintiff’s 

Exhibit F, documents regarding defendant’s Bitcoin account. Specifically, plaintiff asserts, “The 

trial court flatly erred to review and investigate into the [d]efendant’s Bitcoin digital address 

account and associated digital wallet to validate the [p]laintiff’s claim....” 

A trial court cannot consider other evidence in deciding a motion for summary disposition 

under MCR 2.116(C)(8). “Only the pleadings may be considered when the motion is based on 

subrule (C)(8)....” MCR 2.116(G)(5). It appears that plaintiff filed Exhibit F with his response to 

defendant’s first set of interrogatories. Therefore, it is not part of the “pleadings” in this case. See 

MCR 2.110(A). Because the trial court could only consider the pleadings, it did not err in failing 

to review defendant’s Bitcoin account documents. 
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IV. CONCLUSION

The trial court did not err in concluding plaintiff’s claims are unenforceable as a matter of 

law. The text messages submitted by plaintiff do not establish a valid contract between the parties. 

Defendant was properly granted summary disposition of plaintiff’s claims. 

Affirmed. 

/s/ Michael F. Gadola

/s/ Stephen L. Borrello

/s/ Mark T. Boonstra