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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

SCOTT D. NORTON,

Plaintiff-Appellant,

UNPUBLISHED

September 19, 2017

v No. 332348 and 333270

Oakland Circuit Court

TRACI NELSON, also known as TRACI 

MICHELLE MARTIN-NELSON, TRACI 

MICHELLE MARTIN, TRACI MICHELLE 

NELSON and TRACI MARTIN,

LC No. 2015-150277-CK

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 Norton v Nelson, unpublished order of 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, marriagelike 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.

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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