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### STATE OF MICHIGAN

COURT OF APPEALS

ROBERT H. TORRES,

Plaintiff-Appellant, UNPUBLISHED June 14, 2016

v No. 326431
Oakland Circuit Court ESTATE OF ROBERTO TORRES, DIANA CASTILLO TORRES, and NICHOLAS C. TORRES, LC No. 2014-142936-CZ

Defendants-Appellees.

Before: J ANSEN , P.J., and S ERVITTO and M. J. K ELLY , JJ.

P ER C URIAM

.

Plaintiff appeals as of right the trial court order dismissing his complaint to quiet title in a parcel of real property pursuan t to MCR 2.116(C)(4) and (10). We affirm the trial court’s decision dismissing plaintiff’s claim of title pursuant to MCR 2.116(C)(10), but reverse and remand for further proceedings on the issue of plaintiff’s MCR 3.411(F) claim.

In 2000, plaintiff’s father, Robe rto Torres, and his stepmoth er, Diana Torres, purchased a home in Waterford, Michigan, securing a mortgage for the purcha se of the home. Plaintiff, however, was the only person who resided in the home and, accor ding to him, was repeatedly told by Roberto that the home was purchased for plaintiff. Pla intiff asserts that he paid the majority of the amount of the monthly mortgage, taxes, and insu rance for the home to his father, and that he and his father made improvements to the home using monies primarily supplied by plaintiff.

In 2006, Roberto and Diana quitclaimed the property at issue t o themselves and defendant Nicholas C. Torres, Diana’s biological son and Robert o’s adoptive son. In that same year, all three defendants moved to Texas and purchased a home. Plaintiff asserts that he continued to pay Roberto for the mortgage on the property and that Roberto reassured and told plaintiff that the property was his and that he would title the property to plaintiff at some point.

Roberto passed away in February 2014, after which Diana and Ni cholas quit claimed the property at issue to themselves as survivors of the decedent. In May 2014, Diana filed a petition in a Texas Probate Court to probate the estate of Roberto. She was appointed executrix of the
estate and a will of Roberto w as admitted into probate.-2- Plaintiff filed this action inSeptember 2014 asserting that t he property at issue was fraudulently conveyed in 2006 and in 2014, in an attempt to den y plaintiff equitable title to the property. Plaintiff further asserted that Roberto intended tha t the property at issue be held in trust for plaintiff and that def endants would be unjustly enric hed if the trial court failed to find in his favor. Plaintiff sought a decl aratory judgment and for tit le to the property t o be quieted in his

favor.

Defendants moved for summary di sposition contending that the t rial court lacked personal and subject matter juri sdiction, that plaintiff failed to state a claim for which relief could be granted, and that there were no genuine issues of material f act existing that warranted a trial. The trial court granted defenda nts’ motion under MCR 2.116(C)(4 ), opining that to the extent plaintiff’s arguments presented a challenge to Roberto Torres’ will, the trial court had no subject matter jurisdiction given that the probate court had exclusive jurisdiction over matters relating to

the settlement of a deceased individual’s estate. The trial co urt further opined that there was no genuine issue of material fact that a constructive trust should not be established or concerning plaintiff’s remaining claims, th ereby warranting summary dispos ition under MCR 2.116(C)(10) in defendants’ favor. This appeal followed.

On appeal, plaintiff first cont ends that the trial court erred in dismissing his complaint pursuant to MCR 2.116(C)(10) because several issues of material fact remained and because the trial court erroneously made findings of fact regarding the cre dibility of the proffered evidence.
“This Court reviews de novo a tria l court’s grant or denial of a motion for summary disposition.”

Latham v Barton Malow Co , 480 Mich 105, 111; 746 NW2d 868 (2008). A m otion for summary disposition pursuant to MCR 2.116( C)(10) “tests the factual suf ficiency of the complaint.” Joseph v Auto Club Ins Ass’n , 491 Mich 200, 206; 815 NW2d 412 (2012). “In evaluating a motion for summary disposition brought under this subsection, atrial court considers affidavits, pleadings, depositions, admissions, and other evidence submitte d by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion.” Maiden v Rozwood

, 461 Mich 109, 120; 597 NW2d 817 (1999). Summary disposition is proper where there is no “genuine issue regarding any material fact.” Id . “A reviewing court may not employ a standard citing the mere possibility that the claim might be supported b y evidence produced at trial. A mere promise is insufficient under our court rules.” Bennett v Detroit Police Chief , 274 Mich App 307, 317; 732 NW2d 164 (2006). “While it is true that the trial court must consider affidavits, pleadings, depositions, admissions, and other evide nce submitted by the parties, the nonmoving party may not rely on mere allegations or denials, bu t must set forth specific facts that show that a genuine issue of material fact exists.” Id . at 318.

Plaintiff contends that there is a question of fact as to whet her a constructive trust can be established because he provided evidence of superior equitable title in the subject property. “A constructive trust is an equitable remedy created not by intent or by agreement, but by the operation of law.” In re Filibeck Estate , 305 Mich App 550, 552; 853 NW2d 448 (2014). “A constructive trust may be imposed ‘where such trust is necessar y to do equity or to prevent unjust

enrichment . . . .’ ” Kammer Asphalt Paving Co, Inc v East China Twp Schools , 443 Mich 176, 188; 504 NW2d 635 (1993), quoting Ooley v Collins , 344 Mich 148, 158; 73 NW2d 464 (1955). “The imposition of a constructive trust makes the holder of leg al title the trustee for the benefit of another who in good conscience is entitled to the beneficial interest.” Filibeck Estate , 305 Mich App at 552 (internal citations and quotations omitted). “ When property has been acquired-3- in such circumstances that the holder of the legal title may no t in good conscience retain the beneficial interest, equity converts him into a trustee.” Kent v Klein , 352 Mich 652, 656; 91 NW2d 11 (1958) (quotations and citations omitted). “Fraud in the inception we do not require, nor deceit, nor chicanery in any of its varied guises, for it i s not necessary that property be wrongfully acquired. It is enough that it be unconscionably wi thheld.” Id . at 657. In other words, “[a] constructive trust may thus be imposed under any ci rcumstance that renders it unconscionable for the holder of legal title to retain and enjo y the property.” Morris Pumps v Centerline Piping, Inc , 273 Mich App 187, 202; 729 NW2d 898 (2006).

The question, therefore, is wh ether it would be “unconscionabl e” for Diana and Nicholas “to retain and enjoy the property.” See id . Plaintiff asserts that it was unconscionable for them to hold title to the property because decedent purchased the pr operty for plaintiff and had made oral promises to plaintiff expressing such intent. However, th is argument ignores the type of ownership originally grante d to Diana in the premises.

It is undisputed that the decedent and Diana obtained the disp uted premises under a warranty deed as husband and wife. “Our longstanding common law provides that, when a deed is conveyed to a husband and wife, the property is held as a te nancy by the entirety.” Walters v

Leech , 279 Mich App 707, 711; 761 NW2d 143 (2008). Only where the d eed expressly provides otherwise is an estate other than a tenancy by the entirety cre ated. Tamplin v Tamplin , 163 Mich App 1, 5; 413 NW2d 713 (1987). Where a deed does “not specify the nature of the tenancy[,]” but the deed is conveyed to a husband and wife, the two hold “t he subject property as tenants by the entirety.” Id

.

“In a tenancy by the entirety, the husband and wife are consid ered one person in the law.”

Walters , 279 Mich App at 711. “When real property is so held as tenan ts by the entireties, neither spouse acting alone can alienate or encumber to a third person an interest in the fee of
lands so held.” Rogers v Rogers , 136 Mich App 125, 134; 356 NW2d 288 (1984). “The consequence is that neither the husband nor the wife can dispos e of the property without the assent of the other and the whole property must remain to the s urvivor.” Walters , 279 Mich App at 711. In other words, “both spouses have a right of survivor ship, meaning that, in the event that one spouse dies, the remain ing spouse automatically owns the entire property.” Tkachik v

Mandeville , 487 Mich 38, 46-47; 790 NW2d 260 (2010). “Thus, entireties p roperties are not part of a decedent spouse’s estate, and the law of descent and distr ibution does not apply to property passing to the survivor.” Id . at 47.

Here, because the warranty deed was silent on the type of tena ncy to be created, a tenancy by the entirety was created between decedent and Diana, as husband and wife, when they purchased the property in 2000. Tamplin , 163 Mich App at 5; Walters , 279 Mich App at 711. Plaintiff does not challeng e that deed or allege any frau dulent activity on be half of Diana in 2000. Therefore, from 2000 until at least 2006, decedent and D iana owned the subject property as tenants by the entirety. Pursuant to Walters , 279 Mich App at 711, decedent could not possibly have disposed of the property without Diana’s consent. In other words, Diana’s title in the property could not be affected by decedent’s alleged oral p romises to plaintiff, unless she agreed to those same promises. See Tkachik , 487 Mich at 46. Plaintiff never contends that Diana was a party to the agreem ent between himself and decedent regarding the alleged purchase of the property for plaintiff. Indeed, even in plaintiff’s com plaint, he notes the decedent’s-4- attempts to keep Diana in the dark about the alleged oral promi se. Specifically, plaintiff alleged that decedent told him that the mortgage had been discharged to clear all liens on the subject property so that plaintiff could take title without issue, but that decedent asked plaintiff to keep that from Diana. Assuming that the oral promise did actually t ake place, as alleged by plaintiff and his two supporting affidavits, because that promise was notaccompanied by assent from Diana, Diana’s interest in t he subject property could not be, a s a matter of law, affected. Id

.

The subject property, however, did not remain titled solely to decedent and Diana until decedent’s death. Rather, as established by the record, the su bject property was quit claimed by Diana and decedent to Diana, decedent, and Nicholas in 2006. “ Where a conveyance of real property was made to a husband and wife and a third person, the husband and wife were regarded as one person and they therefore took but one moiety a s tenants by the entirety while the third person took his share as a tenant in common.” Butler v Butler , 122 Mich App 361, 365; 332 NW2d 488 (1983). Therefore, the 2006 quit claim deed creat ed a situation where decedent and Diana held title to half of the subject property as tenants by the entirety, and Nicholas held title to half of the property as a tenant in common with Diana and decedent. We have already established that decedent was not permitted to encumber the rig hts of the property to the extent that it was held as a tenant by the entirety with Diana. See Tkachik , 487 Mich at 46. That effect of law remained after the 2006 qu it claim deed; so to the exten t there were any promises by decedent to plaintiff after 2006, those promises still did not affect Diana’s title in the property
unless she consented.

Decedent could also not, as a matter of law, encumber Nicholas ’s interest in the property after 2006, without Nicholas’s assent. “ ‘A tenancy in common is a legal estate . . . with each tenant having a separate and dis tinct title to an undivided sha re of the whole.’ ” Kay Investment Co, LLC v Brody Realty No 1, LLC , 273 Mich App 432, 441; 731 NW2d 777 (2006), quoting Quinlan Investment Co v Meehan Cos , 171 Mich App 635, 639; 430 NW2d 805 (1988). “Accordingly, because there is unity of possession, one cotenan t cannot ordinarily bind cotenants by contracts with third persons o r transfer or dispose of the i nterest of another cotenant in such a manner as to be binding, unless duly authorized to do so, or un less his or her act is thereafter ratified by the other cotenants.” Kay Investment , 273 Mich App at 441 (citations and quotations omitted). Like Diana, the record is absent of any contention that Nicholas consented to decedent’s oral promises. Indeed, plaintiff makes no claim tha t Nicholas even knew of such promises by decedent. Therefore, due to Nicholas’s lack of con sent, decedent’s oral promises
could not encumber Nicholas’s interest in the property. Id

.

On appeal, plaintiff also asserts that the 2006 quit claim dee d was invalid because of undue influence on the decedent by Diana. Plaintiff is correct that a deed that is the product of undue influence may be found to be invalid. Kar v Hogan , 399 Mich 529, 537; 251 NW2d 77 (1976).

To establish undue influence it must be shown that the grantor was subjected to threats, misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to overpower volition, destroy free agency and impel the grantor to act against his inclination and fr ee will. Motive, opportunity, or even ability to control, in the absence of affirmative evidence that it was exe rcised, are not-5- sufficient. [ In re Estate of Karmey , 468 Mich 68, 75; 658 NW2d 796 (2003) (citations and quotations omitted).]

While there are situations where undue influence is presumed, that “presumption is not applicable to marriage.” Id

.

Plaintiff has provided no evidence of undue influence by Diana , but only directs this Court to a statement by decedent’s brother that decedent was su ffering memory loss and symptoms of Alzheimer’s or dementia as early as 2006. Plaintif f alleges no theory of how Diana actually applied some undue influence, only blatant accusation that she did. Plaintiff’s argument is without merit, because he has provided no “affirmative evide nce” that her opportunity to use undue influence was actually used. Id

.

Plaintiff’s assertion that the 2006 deed was invalidated is al so irrelevant, because even if
the deed was invalidated due to undue influence, it would not p ermit plaintiff any relief. If
indeed this Court or the trial court were to determine that the 2006 quit claim deed were in some manner fraudulent and needed to be set aside, the remedy would be to simply restore the 2000 warranty deed. Turok v Dombrowski , 341 Mich 562, 569; 67 NW2d 798 (1954) (“We do not aid one of two parties guilty of complicity in fraud, but leave the m where their own actions left them.”). As we have already discussed herein, decedent and Diana’s legal status under the 2000 deed was as tenants by the entirety, under which Diana’s intere st could not be encumbered by unilateral promises by decedent. Therefore, plaintiff’s argume nt that the 2006 quit claim deed be
found invalidated is irrelevant to the issue of c onstructive tr ust presented on appeal. See id

.

In plaintiff’s last attempt to prove that a constructive trust should be imposed, plaintiff argues that decedent’s will was the product of undue influence by Diana. Decedent’s will is not relevant to the subject property. Again, decedent’s interest i n the subject property from the time of purchase to the time of decedent’s death, was as a tenant by the entirety with Diana. With tenants by the entirety, “in the event that one spouse dies, th e remaining spouse automatically owns the entire property.” Tkachik , 487 Mich at 46-47. “[W]hen a husband and wife choose to hold property by the entirety, ne ither spouse may individually . . . devise . . . that property without the consent of the other spouse.” Canjar v Cole , 283 Mich App 723, 730; 770 NW2d 449 (2009). In other words, when decedent died, all of decedent’s interest in the property transferred to Diana as an operation of law, regardless of any provision in decedent’s will, or subject to the effectiveness thereof. See id . Therefore, any challenge made by plaintiff to the validity of decedent’s will is entirely irrelevant to the issue s presented before this Court, because the subject property was “not part of [] decedent[‘s] estate.” Id

.

Finally, plaintiff asserts that the trial court made impermiss ible findings of fact in favor of defendants when considering wh ether a constructive trust sho uld be imposed. Specifically, plaintiff alleged that the tri al court found that Enrique Torre s’ allegation of decedent’s mental incapacity in 2006 was not sufficient to question the competenc y of decedent and that the trial court believed Diana’s averment that the payments made by plain tiff were rent payments, rather than payments to purchase the home. Assuming that the trial co urt did improperly make such findings, those findings would have been irrelevant. As is evi dent from the preceding analysis, both the alleged incapacity of decedent to make the 2006 quit c laim deed and the payments made by plaintiff for the property, were irrelevant to the question of a constructive trust. In other-6- words, those facts were irrelevant to the determination that Di ana and Nicholas held conscionable legal title to the subject property.

In sum, Diana obtained legal title to the property in 2000, as a tenant by the entirety with decedent, and remained in such legal title throughout decedent’ s life, and during any promise decedent made to plaintiff. That legal title could not be dist urbed by decedent or plaintiff, and title vested with her entirely by operation of l aw upon deceden t’s death. A constructive trust will be found only when “it [is] unconscionable for the holder of le gal title to retain and enjoy the property.” Morris Pumps , 273 Mich App at 202. Diana engaged in no activity that would indicate that her holding title would be “unconscionable.” Eve n if we assume everything that plaintiff alleges Diana did as true, including using undue infl uence on the allegedly mentally incapacitated decedent to make the 2006 quit claim deed, make p laintiff sign a rental agreement, write and sign decedent’s 2012 will, and write the letter to ev ict plaintiff in 2013, we are still left with Diana’s unaltered and inalienable title to the subject pro perty as a tenant by the entirety.

Tkachik , 487 Mich at 46-47. Therefore, upon decedent’s death, Diana o btained title as required by the law and in an ethical manner.

Due to the 2006 quit claim deed, Nicholas also held legal titl e to the subject property. To the extent that plaintiff asserts superior legal title to the s ubject property, he is also alleging superior title to Nicholas. Like Diana, Nicholas obtained titl e through legal means of conveyance, as discussed supra . Unlike Diana, however, plaintiff makes no claim that Nichola s engaged in any wrongdoing or fraudulent activity that caused th e constructive trust to arise. Rather, according to plaintiff, Nicholas was just the beneficia ry of Diana’s undue influence, in that he ended up with a one-half interest in the subject proper ty pursuant to the 2006 quit claim deed. However, “a constructive trust may not be imposed upon p arties who have in no way contributed to the reasons for imposing a constructive trust.” Morris Pumps , 273 Mich App at 202-203 (citations and quotations omitted). There is no eviden ce that Nicholas engaged in any activity that amounted to the r easons plaintiff sought the cons tructive trust; therefore, it would not have been proper to impose the constructive trust against h im. Id . Nicholas holding legal title to the property was not “unconscionable” because he held valid legal title, and there was no allegation that Nichol as engaged in any wrongdoing. Id

.

The trial court properly determined that there was no genuine issue of fact regarding implementation of a constructive trust in favor of plaintiff fo r the subject property. Without a constructive trust, plaintiff wa s left without any allegation t hat he held superior equitable title in the subject property. Therefore, there was no question of fact that plaintiff had failed to make a prima facie case of superior title required in an action to qui et title. Beulah Hoagland Appleton Qualified Personal Residence Trust v Emmet County Road Com’n , 236 Mich App 546, 550; 600 NW2d 698 (1999). Because plaintiff failed in that regard, summ ary disposition by the trial court of plaintiff’s claims to title in the property was properly gra nted in favor of defendants. Special Property VI v Woodruff , 273 Mich App 586, 590; 273 NW2d 753 (2007).

Plaintiff also contends that the trial court erred in dismissi ng his complaint for lack of subject matter jurisdiction unde r MCR 2.116(C)(4). However, th e trial court actually only disposed of plaintiff’s claims c hallenging the validity of dece dent’s will under th is court rule. In any event, we need not consider this argument, given our above conclusion that the issue of-7- decedent’s will is entirely irrelevant to the outcome of this c ase because the property in question
was never an asset that could be devised.

Lastly, plaintiff contends that the trial court erred in refus ing to consider whether plaintiff set forth a colorable claim for unjust enrichment under MCR 3.4 11(F) in his complaint and that the trial court, having determined title to the property, shoul d have retained jurisdiction over plaintiff’s claim for unjust enri chment. “[C]onstruing and app lying a court rule presents a legal issue subject to review de novo.” Wickings v Arctic Enterprises, Inc , 244 Mich App 125, 133; 624 NW2d 197 (2000).

In his complaint, plaintiff set forth a claim entitled “unjust enrichment” but admittedly did not specifically mention MCR 3.411(F) in that section of th e complaint. Plaintiff did, however, reference MCR 3.411 in the “Jurisdiction” section of c omplaint. The trial court found that because plaintiff’s unjust enrichment claim did not identi fy MCR 3.411(F), because a claim under that court rule is not ripe until after a finding of titl e has been made, and because the relief sought by plaintiff went beyond that provided for in MCR 3.411( F), defendants were entitled to summary disposition with respect to plaintiff’s unjust enrichme nt claim pursuant to MCR 2.116(C)(10).

MCR 3.411(B) provides that a complaint to determine interests in land must describe the subject property “with reasonable certainty” and describe the p arties’ interest in the property along with “the facts establishi ng the superiority of the plain tiff’s claim.” MCR 3.411(B). A claim to recoup the value of improvements and buildings added t o the subject property if title is quieted in favor of another is governed by MCR 3.411(F). That subrule states:

(1) Within 28 days after the finding of title, a party may fil e a claim against the party found to have title to the premises for the a mount that the present value of the premises has been increased by the erection of bui ldings or the making of improvements by the party making the claim or those t hrough whom
he or she claims.

(2) The court shall hear evidence as to the value of the build ings erected and the improvements made on the premises, and the value the pr emises would have if they had not been impr oved or built upon. The court sh all determine the amount the premises would be worth at the time of the claim had the premises not been improved, and the amount the value of the premises was inc reased at the time of the claim by the buildings erected and improvements mad e.

(3) The party claiming the value of the improvements may not r ecover their value if they were ma de in bad faith. [MCR 3.411(F).]

The above rule does not require that a separate complaint be filed against the party found to have title to initiate a new civil action. It simply allows for one party to file a claim against the titled party. Moreover, “Michigan i s a notice-pleading state.” Johnson v QFD, Inc , 292 Mich App 359, 368; 807 NW2d 719 (2011). “[T]he primary function of a pl eading in Michigan is to give notice of the nature of the claim or defense sufficient to perm it the opposite party to take a responsive position.” Stanke v State Farm Mut Auto Ins Co , 200 Mich App 307, 317; 503 NW2d-8- 758 (1993). As previously indicated, plaintiff did mention MCR 3.411 in his complaint. The complaint also references the al leged repairs and improvements to the property made by plaintiff. Plaintiff also provided evidence in the form of invoices for th e tree removal and drywall. Additionally, plaintiff provided a list of improvements made to the property as an exhibit and identified how much he paid for all of that work, alleging more than $32,000 in improvements to the property. Defendants thus h ad adequate notice that plainti ff intended to make a claim for restitution pursuan t to MCR 3.411(F). See Id . at 317.

In its opinion and order, the tri al court determined that defe ndants had title to the disputed property. Plaintiff should thereaf ter have been provided 28 da ys to make a colorable claim for restitution of the value of the improvements. Instead, the tri al court found that MCR 3.411(F) did not “salvage” plaintiff’s unj ust enrichment claim and close d the case. This was in error. The trial court could properly dismiss the unjust enrichment claim but, because plaintiff had put defendants on notice of his intent to seek damages for improvem ents made to the home, the trial court should nevertheless have left the case open to allow plai ntiff 28 days to pursue his claim for the value of improvements.

We affirm the trial court’s de cision dismissing plaintiff’s cl aim of title pursuant to MCR 2.116(C)(10), but reverse and remand for further proceedings on the issue of plaintiff’s MCR 3.411(F) claim. We do not r etain jurisdiction.

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