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### STATE OF MICHIGAN

COURT OF APPEALS

JOSEPH DAVENPORT,

Plaintiff-Appellant, UNPUBLISHED June 9, 2015

v No. 321615 Kalamazoo Circuit Court BOJAN HRPKA, LC No. 2012-000433-CK

Defendant-Appellee.

Before: H OEKSTRA , P.J., and O’C ONNELL and M URRAY , JJ.

P ER C URIAM

. Plaintiff, Joseph Davenport, appe als as of right the trial cou rt’s November 14, 2013 order granting partial summary disposition to defendant, Bojan Hrpka, on all of Davenport’s claims except his unjust enrichment claim. Davenport also appeals as of right the trial court’s November 14, 2013 decision denying damages on his unjust enrich ment claim for household services he provided H rpka. We affirm.

I. FACTS

Davenport and Hrpka began living together in 2005, in Californ ia. In February 2010, Hrpka obtained a medical residency in Kalamazoo, Michigan, and the parties exchanged a series of emails about moving to Michigan. During the email exchanges , Davenport indicated that his ongoing education in California was important to him and the pa rties would “need to come up with some type of agreement” if Davenport were to move. In May 2010, Hrpka stated in an email:

I know you are scared of moving, I promise to give you the pali mony for all you are giving up and to make you feel more secure and to come out to my mother within the first 6 months. I love you[.]

Hrpka also admitted at his depos ition that he intended to suppo rt Davenport and repay Davenport money that Davenport had paid toward Hrpka’s student loans. Hr pka testified that he supported Davenport because they lived together. Hrpka testified that he believed Davenport moved to Michigan because he loved Hrpka. Davenport testified that Hrpk a misled him and made false statements to induce him to move to Michigan from California, b ut he also testified that he did not have any evidence that Hrpka ’s statements were false when h e made them.-2- Both Hrpka and Davenport testified that Davenport did most of the household chores and took care of the partie s’ finances while Hrpka attended medical school. According to Davenport, he did so with the expectation that his “life would be better i n the future financially.” However, Davenport expressed confusion when asked whether he expected wa ges for his services and testified that he believed that “if I were to continue taking c are of him doing what I was doing, being the dutiful house spouse my life would be better and the sacrifices would be worth it in the end.” Hrpka testified that Dave nport never asked for compensat ion for his services.

Hrpka testified that the partie s’ relationship began to deteri orate because Davenport began “demanding half of [Hrpka’s] income for the number of yea rs we were together.” Davenport testified that Hrpka promised he would receive 50 per cent of Hrpka’s earnings for the length of their relationship. The parties agreed to get marrie d in New York in November 2011, but Hrpka cancelled the wedding a few days before the ceremony. Hrpka testified that he cancelled the wedding because Davenport was physically violent with him. Davenport testified that he struck Hrpka on five occasions. Hrpka testified that a fter Davenport struck him, one of Davenport’s friends began working on a contract. This contract , dated November 8, 2011, provides the following: 1

Joseph Davenport and Bojan Hrpka have been in LOVE since our ve ry first date on Nevember 12th, 2004. We have continued to love each other t hrough good times and bad times.

We were to be married on November 12 th , 2011 and Bojan felt that it was not the right time to get married so what we have both decided to do is postpone our wedding for a day when we can both say our vows to each other w hile our hearts are pumping with love. (A Note fr om Joseph: I can’t wait for that beautiful day)

We have both decided that seek ing out counseling will be very b eneficial for the both of us. So that is what we will do

Joseph will also start seeing an anger management specialist. I know I have temper problems and I want to change to become a better for Boj an so that he feels protected by me and not afraid of me.

We will also seek out legal advice to form a common-law partner agreement, also wills and power of attorneys. Should the relationship dissolve Bojan Hrpka will commit to giving Joseph L. Dave nport spousal su pport on his future earnings for the length of their relationshi p. Joseph L. Davenport will be paid in full of his settlement that he received in S eptember 2010 in the amount of $150,000. Bojan Hrpka will get equal ownership of all our household items that Joseph L. Davenport purchased in 2006. And we both need to compromise wi th each other so that we are both happy. (I know this is fantasy but I reall y like you they did it in the birdcage how they owned half each other) This agreement is to make

1 All spelling, punctuation, and othe r errors are found in the o riginal.-3- Joseph feel safe and he hopes that he will never have to use. I still to this day want to grow old and be on matchi ng rockers with Bojan in 30 ye ars.
I really want us to forget all this evilness and just take our trip to New York and have a great time. We have both not gotten away in quite some time and it will be nice to spend some time alone with you in New York and then with family and friends.

I Joseph L. Davenport commit m y life to loving and protecting B ojan Hrpka

I Bojan Hrpka commit my life to loving and protecting Joseph L. Davenport

[Signatures and dates.]

Hrpka testified that the purpose of the contract was for the pa rties to agree to obtain an attorney to discuss powers of attorney and other legal documents. Daven port testified that he made appointments to discuss matters with an attorney , but Hrpka can celled the appointments.

According to Hrpka, in June 2012, the parties had an argument that ended with Davenport striking him repeatedly. Hrpka left the parties’ apa rtment and sought medical attention. Hrpka’s hospital report indicated that he had suffe red injuries to his neck, chest, and back. The parties’ relationship ended.

In August 2012, Davenport filed his complaint in this action. Davenport alleged claims of breach of contract, unjust enri chment, negligent and intenti onal infliction of emotional distress, fraud, joint venture, a nd partnership. In July 2013, Hrpka moved for summary disposition under MCR 2.116(C)(10), contending that the parties ’ contract was invalid because it did not have a proper legal purpos e, he did not engage in extre me and outrageous conduct, Davenport had not pleaded a claim of fraud, and the parties’ re lationship was personal rather than a joint venture or partnership. In his response, Davenpor t also moved for summary disposition under MCR 2.116(C)(10).

In a detailed opinion and order in November 2013, the trial co urt granted Hrpka’s motion for summary disposition on all Davenport’s claims except for Da venport’s unjust enrichment claim. It then granted Davenport’s motion for summary disposit ion on the unjust enrichment claim. The trial court determined that the parties’ contract w as void under the Michigan Marriage Amendment, Const 1963, art 1, § 25, because it purport ed to create a similar union to marriage. The trial court determined that the contract was ind ependently void under commonlaw principles. The trial court also reasoned that Davenport h ad not overcome the presumption that services rendered during a m eretricious relationship are g ratuitous.

Regarding unjust enrichment, the trial court determined that H rpka admitted that he received money from Davenport that he intended to repay. The t rial court determined that to the extent that Davenport paid for Hrpka’s student loans, Hrpka was unjustly enriched. However, it also determined that “[t]o the e xtent Davenport bases his claim for unjust enrichment on his providing household services to Hr pka, he has not addressed thi s basis or his claim in his brief.”-4- The trial court granted summary disposition on Davenport’s int entional infliction of emotional distress claim because Hrpka’s actions were not beyon d the bounds of decency, and granted summary disposition on his negligent infliction of emot ional distress claim because Davenport conceded that claim in his brief. The trial court de termined that Davenport’s fraud claims involved future promises and therefore did not constitut e fraud as a matter of law. Finally, the trial court granted summary disposition on Davenpo rt’s joint venture and partnership claims because Davenport did not identify a business transactio n or enterprise that the parties operated for profit. The trial court noted that running a hous ehold does not constitute carrying out a business.

The trial court held a bench trial on damages for Davenport’s unjust enrichment claim and awarded Davenport $46,252.50 for his contributions to Hrpka ’s student loans.

II. STANDARD OF REVIEW

This Court reviews de novo the trial court’s decision on a mot ion for summary disposition. Gorman v American Honda Motor Co, Inc , 302 Mich App 113, 115; 839 NW2d 223 (2013). A party is entitled to summary disposition under MCR 2 .116(C)(10) if “there is no genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter of law.” The trial court must consider all the documentary evi dence in the light most favorable to the nonmoving party. MCR 2.116(G)(5). A genuine issue of m aterial fact exists if, when viewing the record in the light most favorable to the nonmoving party, reasonable minds could differ on the issue. Gorman , 302 Mich App at 115.

To survive a motion for summary disposition, once the moving p arty has identified issues in which there are no disputed issues of material fact, the bur den is on the nonmoving party. MCR 2.116(G)(4); Quinto v Cross & Peters Co , 451 Mich 358, 362; 547 NW2d 314 (1996). The nonmoving party “must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists.” Quinto , 451 Mich at 362. If the nonmoving party does not make such a showing, the trial c ourt properly grants summary di sposition. Id . at 363.

III. UNJUST ENRICHMENT DAMAGES

Davenport contends that the trial court erred when it limited the amount of unjust enrichment damages to the amount that Davenport directly contri buted to Hrpka’s education, rather than awarding damages for his contributions to the house hold. We disagree.

We conclude that Davenport has abandoned this issue. If a party does not address the basis of the trial court’s decision, we need not even consider granting relief. Derderian v Genesys Health Care Sys , 263 Mich App 364, 381; 689 NW2d 145 (2004).

In this case, the trial court granted summary disposition in f avor of Davenport on the issue of unjust enrichment, but i t determined that the damages were limited to the direct financial contributions Davenport made to Hrpka’s student loans because D avenport did not address whether he was entitled to damages for household services in hi s response to Hrpka’s motion for summary disposition. In his brief on appeal, Davenport does no t even acknowledge that the trial court determined he abandoned this issue, much less address the basis of the trial court’s decision. Therefore, we decline to reach the merits of this is sue.-5- IV. BREACH OF CONTRACT

Davenport contends that the tria l court erred when it granted summary disposition on his breach of contract claim because the Marriage Amendment is unco nstitutional and the parties’ contract was not void as a matter of public policy. Hrpka argu es that even presuming the Marriage Amendment is unconstitu tional, the parties’ contract i s void under common-law contract principles. We agree with Hrpka.

Marriage is not merely a personal relationship, but also a pub lic institution. Attorney General v Marital Endowment Corp , 257 Mich 691, 694; 242 NW 297 (1932). “One of the essential elements of a valid contract is that it be for a prop er subject matter.” Muflahi v Musaad , 205 Mich App 352, 353; 522 NW2d 136 (1994). Michigan has “ab olished the civil cause of action for breach of contract to marry.” Carnes v Sheldon , 109 Mich A pp 204, 211; 311 NW2d 747 (1981); MCL 551.301.

Where not abolished by statute, a right of action for breach o f a promise to marry arises on the failure of one of the parties to perform ac cording to the terms of a contract, and if there has been a failure on the part of t he defendant in the performance of the terms of the agreement, and that failure has been treated by the other party as a breach, a cause of action arises. [23 Wil liston, Contracts (4th ed), § 62:27.]

The agreement to marry must have a valid offer and acceptance, which may be implied from the parties’ circumstances or conduc t, and the parties’ mutual prom ise to marry is sufficient consideration for the contract. Id

. In this case, the only consider ation stated in the parties’ co ntract is the parties’ intent to get married in the future. The first two paragraphs of the con tract are devoted to reciting the history of the parties’ relations hip and their intent to have a wedding. The contract also contains professions of love and several personal promises designed to b ind the parties to the relationship, including their promises to cons ult with an attorney and come t o an agreement about property division. The contract does not pr ovide any specific remedy fo r its breach.

Given the contractual language, reasonable minds could not dif fer regarding whether the contract is a contract to marry. We conclude that the contract is invalid because Michigan has abolished actions for breach of contract to marry; therefore, t he contract does not have a proper
purpose.

V. INFLICTION OF EMOTIONAL DISTRESS

Davenport contends that the trial court improperly granted summary disposition on his negligent and intentional infliction of emotional distress clai ms because questions of fact existed regarding whether Hrpka’s conduc t was extreme and outrageous. We disagree.

The elements of intentional in fliction of emotional distress a re “(1) the defendant’s extreme and outrageous conduct, ( 2) the defendant’s intent or r ecklessness, (3) causation, and (4) the severe emotional distress of the plaintiff.” Lucas v Awaad , 299 Mich App 345, 359; 830 NW2d 141 (2013) (quotation marks and citation omitted). Extrem e and outrageous conduct is-6- conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Doe v Mills , 212 Mich App 73, 92; 536 NW2d 824 (1995). This does not incl ude “mere insults, indignities, t hreats, annoyances, petty oppressi ons, and other trivialities.” Id

. Davenport claimed that several of Hrpka’s actions during the r elationship were outrageous and caused him emotional distress, including: Hrpka allowed his friends to treat Davenport as a servant rather than a spouse; Hrpka told his par ents that Davenport was his roommate who babysat his dogs; Hrpka allowed his friends to mis treat the parties dogs; Hrpka would not walk the dogs; Hrpka broke up with him but did not ta ke care of him; Hrpka scolded him for spending money; Hrpka slapped Davenport in a store for making a statement about another man’s attractiveness; H rpka would “push [Davenport’s] b uttons on purpose”; Hrpka led Davenport to believe they would build a home together and then refused to put a deposit on the home order; and Hrpka asked Davenport’s roommate to move out. Even assuming that these allegations are true, no reasonable jury could find that these actions are atrocious, intolerable, or beyond the bounds of decency. To the contrary, with the except ion of the domestic violence, these are standard interactions that a reasonable person would expect to occur during a deteriorating relationship. 2 While they do not fall to the level of trivialities, Hrpka’s actions are at best indignities, annoyan ces, and petty oppressions.

Because reasonable minds could not differ regarding whether Hr pka’s conduct was extreme and outrageous, we conclude that the trial court proper ly granted summary disposition on Davenport’s intentional inflic tion of emotion distress claim . Further, we note that the trial court properly dismissed Davenpor t’s negligent infliction of em otional distress claim because Davenport conceded in his brief on summary disposition that he did not have facts to support that claim. See Clohset v No Name Corp , 302 Mich App 550, 555; 840 NW2d 375 (2013) (holding that a party may not create the er ror that it seek s to correct on appeal).

VI. FRAUD

Davenport contends that the tria l court improperly granted sum mary disposition because he asserted a valid fraud cl aim. We disagree.

Fraud requires a statementregarding a past fact. Hi-Way Motor Co v Int’l Harvester Co
, 398 Mich 330, 336; 247 NW2d 813 (1976). “Future promises are c ontractual and do not constitute fraud.” Id . In this case, Davenport asserted that Hrpka defrauded him by making promises that he did not keep. When asked at his deposition wh ich facts Hrpka misrepresented, Davenport could not state any facts that were false when Hrpka stated them. Rather, Davenport

2 Domestic violence is not a sta ndard interaction one would expe ct to occur during a deteriorating relationship. However, most of the allegations o f domestic violence in the parties’ relationship involved Davenport striking Hrpka. Davenport’s on ly allegation of domestic violence was that Hrpka slapped him in a store. While domestic violence is not tolerable in a civilized society, the single instance was not so extreme in de gree and outrageous that it provided facts to support an intentional infliction of emotional distres s claim.-7- recited promises that Hrpka made to him. The breaking of promi ses is not fraud. We conclude that the trial court did not err when it concluded that Davenpo rt’s fraud claim sounded in contract law and dismissed the claim.

VII. JOINT VENTURE/PARTNERSHIP

Davenport contends that the trial court improperly granted summary disposition on his joint venture and partnership claims because the parties merged their finances and acted for the purpose of making a profit. We disagree.

A partnership is an association of two or more persons “to car ry on as co-owners of a business for profit.” MCL 449.6(1). Parties who associate to carry on a business for profit “will be deemed to have formed a partnership relationship regardless of their subjective intent to form such a legal relationship.” Byker v Mannes , 465 Mich 637, 646; 641 NW2d 210 (2002). Similar to a partnership, a joint venture requires an intent to engage in a business for profit:

The elements of a joint venture are:

(a) an agreement indicating an i ntention to undertake a joint v enture;

(b) a joint u ndertaking of

(c) a single project for profit;

(d) a sharing of profits as well as losses;

(e) contribution of skills or property by the parties;

(f) community interest and control over the subject matter of t he enterprise. [ Meyers v Robb , 82 Mich App 549, 557; 267 NW2d 450 (1978) , citing Goodwin v S A Healy Co , 383 Mich 300, 308-309; 174 NW2d 755 (1970).]

In this case, Davenport did not provide facts to show that a g enuine issue of material fact existed on these claims. There was simply no evidence that the parties combined their finances and operated as a single unit to carry on a business or single project for profit. A personal relationship is not a business or project. We conclude that th e trial court properly granted summary disposition on Davenport’s joint venture and partnershi p claims.

We affirm.

/s/ Joel P. Hoekstra /s/ Peter D. O’Connell /s/ Christopher M. Murray