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### STATE OF MICHIGAN

COURT OF APPEALS

JOHN J. MATOUK,

Plaintiff-Appellee, UNPUBLISHED May 2, 2017

v No. 328983 Oakland Circuit Court THE ROBERT L. BARRICK TRUST and ROBERT L. BARRICK, LC No. 2014-143447-CK

Defendants,

and

TIMOTHY MATOUK,

Appellant.

JOHN J. MATOUK and MATOUK INVESTMENTS OF NOVI, LLC,

Plaintiffs-Appellants,

v No. 331987 Oakland Circuit Court ROBERT L. BARRICK, THE ROBERT L. BARRICK TRUST, and BARRICK PROPERTIES #40, LLC, LC No. 2014-143447-CB

Defendants-Appellees.

Before: M ARKEY , P.J., and W ILDER and S WARTZLE , JJ.

P ER C URIAM

. These consolidated appeals arise out of distinct orders entere d below by different circuit court judges. The change in judges resulted from a midstream t ransfer of the action below to business court. In Docket No. 328983, nonparty-appellant, Timo thy Matouk (Timothy),claims an appeal as of right from the tr ial court’s order granting the motion of plaintiff, John J. Matouk-2- (John), to compel Timothy to attend a deposition and answer cer tain questions. 1 Because he neither was nor will be deposed, we conclude that Timothy’s cla im of appeal is moot.

In Docket No. 331987, in which John and Matouk Investments of Novi, LLC (Matouk Investments) (collectively, plai ntiffs), appeal as of right the trial court’s order granting defendants Robert L. Barrick, the Robert L. Barrick Trust (the Trust), and Barrick Properties #40, LLC (Barrick Properties) (co llectively, defendants) summar y disposition of all of plaintiffs’ claims, we affirm.

I. FACTUAL BACKGROUND

This case arises out of plaintiff John’s insolvency during the “Great Recession,” resulting in numerous judgments against him. John subsequently attempted to shield his assets from creditors by temporarily transfe rring title to those assets to Barrick, such attempt being described euphemistically by the parties as the “parking” of John’s asset s with Barrick.

By affidavit, John testified as follows:

1. I am a real estate investor who fell into financial hardshi p when the real estate market imploded.

2. Facing foreclosure on my pers onal residence as well as othe r outstanding debt obligations that were coming or had come due, I sought the help of a trusted friend: Robert L. Barrick.

3. Between 2008 and 2012, I entered into a series of loan tran sactions with Robert L. Barrick or various financial entities under his control (“Barrick”) in which Barrick made certain loans and advances to me (both se cured and unsecured) in exchange for an oral promise that I would repay h im for the value of those loans when my personal finances improved.

* * *

5. Consistent with our loan arrangements, I transferred the ti tle to certain real and personal properties to Barrick. These transfe rs were not sales or purchases, but rather were intended to serve as collateral for the loan obligations I had incurred, in the event that I was unable to repay Barrick.

6. For example, in March 2009, Barrick took title to real prop erty situated at 43420 Grand River Ave., Novi, MI, where Fidelity In vestments was the major tenant (the “Fidelity Property”).

1 John argues that this Court l acks appellate jurisdiction over Timothy’s claim of appeal.-3- 7. At the time the Fidelity Property was provided to Barrick, it had been sold at sheriff’s au ction by Huntington Bank for $1,519,93 7.91.

* * *

10. Barrick and I agreed that th e Fidelity Property would serv e as additional collateral for loans that Barrick had previously pro vided to me, because the existing collateral provide d to that point had been insuffi cient.

11. Barrick did not repay me or any business entity under my c ontrol any money for the Fidelity Property, nor did he loan me any add itional money at the time that the deal closed.

* * *

15. Barrick received $1,577,132 in payments on the [Fidelity] property.

* * *

24. In early 2012, Barrick and I agreed that I could redeem th e Fidelity Property and fully repay Barrick for all outstanding loan oblig ations that I owed to Barrick, by paying $2.95 million. We also decided that the amount of credit given for rents paid on the Fide lity Property would be addresse d later.

* * *

26. Barrick fraudulently induced me into believing that I coul d reacquire the Fidelity Property once I repair [sic] certain out standing loan obligations.

27. A third party purchaser acqui red the Fidelity Property fro m Barrick Properties. . . .

As referenced in John’s affidavit testimony, the “parking” arr angement between John and Barrick involved numerous assets and was memorialized by severa l written agreements. In October 2008, Barrick, acting as trustee of his Trust, entered into the “Global Agreement” (the global agreement) with John. The “ RECITALS ” section of the global agreement provided, in pertinent part, “It is agreed by the parties that the above men tioned recitals are not mere declarations, but rather part of the terms and conditions of th is Agreement.” The global agreement had neither a merger clause nor an integration clause . Attached to the global agreement as exhibits were seven other contractual agreements b etween the parties. Such contracts granted Barrick (as tr ustee of his trust) a variety o f interests in John’s real and personal property. The contracts in quest ion demonstrate a sophisticate d understanding of contract law and secured transactions and in clude outright purchase agreemen ts, a lease, an assignment of a lease, several options to purchase real estate, a pledge of sec urity consisting of membership interests in a limited liability company (LLC), and a security agreement.-4- Matouk Investments later assigned the right to redeem the Fide lity property to Barrick Properties. Matouk Investments also provided a warranty deed c onveying the Fidelity property to Barrick Properties, w hich was duly recorded.

In July 2009, the parties entered a “First Amendment to Global Agreement” (the first amendment). The “ RECITALS ” section of the first amendment provides,

A. On October 17, 2008, the Parties entered into a Global Agr eement (“Agreement”) setting forth the terms and conditions of certain financing extended by Barrick to [John] as well as the sale and transfer of certain personal and real property from [John] to Barrick.

B. Since entering the Agreement . . . Barrick has made additi onal loans, both secured and non-secured, to [John] and/or entered i nto transactions for the benefit of [John], which can be summarized as follows:

(i) $1,732,500 - Fidelity Invest ments of Novi building

(ii) $ 25,000 - Advanced secu red [sic] by Mercedes CL55

(iii) $10,000 - Advance secured by IWC Watch

(iv) $ 90,000 - Advance secu red by Ferrari 360 Spider

(v) $105,000 - Advance

C. On July 23, 2009, Barrick has advanced the sum of $75,000 to [John].

D. The Parties agree that [John] is indebted to Barrick in th e amount $3,300,000.

In pertinent part, the remainde r of the first amendment provide s,
1. On or before August 15, 2009, [John] shall pay the sum of $3,000,000 to Barrick.

2. Upon receipt of the payment called for in paragraph 1 above

, Barrick shall transfer the Fidelity Investments of Novi Buildin g to [John] or an entity to be formed by [John].

* * *

7. Except as otherwise provided herein, all other terms and co ndition [sic] of the original Global Agreement, and any subsequent fina ncing related agreement between the Parties, s hall remain in full force and e ffect.

John failed to make the $3 milli on payment to Barrick described in ¶ 1 of the first amendment.-5- On April 25, 2012, Barrick Properties and NOVI/GR LLC (NOVI/GR )—an entity John had formed to reacquire the Fidel ity property—entered into a pu rchase agreement under which NOVI/GR agreed to pay $2.95 million, “plus or minus net pro-rat ions and adjustments as provided” in the purchase agreem ent, for the Fidelity property. The parties to the April 25, 2012 purchase agreement agreed that Barrick Properties was then “the owner of fee simple title to” the Fidelity property. On appeal, plaintiffs concede that NOVI/GR failed to pay the agreed $2.95 million. Defendants subsequently sold the Fidelity property to a third-party purchaser.

In reaction, John filed a verified complaint against Barrick a nd his Trust, asserting, among others, the following claims: (1) breach of contract, (2) fraudulent misrepresentation, (3) innocent misrepresentation, (4) breach of fiduciary duty, (5) u njust enrichment, (6) common-law conversion, (7) statutory conve rsion, (8) accounting, and (9) n egligence. 2 At defendant’s motion, the trial court subseque ntly granted Barrick and his Tr ust partial summary disposition of several claims other than thos e at issue in this appeal.

The matter proceeded to discovery. Timothy was listed as a po tential witness in both John’s witness list a nd that filed by defendants Barrick and th e Trust. In July 2015, John filed a motion to compel Timothy’s compliance with a subpoena to testif y at a deposition. John alleged that Timothy had ignored a prev ious subpoena to appear for a de position and had, through counsel, indicated that he was only willing to be deposed if th e “scope” of the inquiry excluded certain questions. After entertaining oral argument on the mat ter, the trial court granted John’s motion to compel, thereby ordering Timothy to appear for his de position and to answer the disputed questions. Timothy filed a claim of appeal from the t rial court’s order compelling his deposition testimony, thereby i nstituting Docket No. 328983. 3

Once the action was transferred to business court, defendants moved for summary disposition of all of plaintiffs’ claims under MCR 2.116(C)(10) . Defendants argued, inter alia
, (1) that plaintiffs could not pur sue a breach of contract claim against defendants regarding the Fidelity property because plaintiffs breached the first amendme nt, failing to pay defendants $3.3 million within the agreed timeframe, (2) that the first amendme nt and subsequent purchase agreements superseded any prior oral agreement between the part ies regarding the alleged “parking” arrangement, (3) that a ll of plaintiffs’ equitable cl aims were barred by the doctrine of unclean hands, (4) that plaintiffs’ innocent and intentional mi srepresentation claims failed because the misrepresentations of which plaintiffs complained w ere about future conduct, not of a past or then-existing fact, (5 ) that even if such purported m isrepresentations were considered under a fraudulent inducement theory, plaintiffs’ claim would s till fail because plaintiffs had

2 John later sought and was granted leave to amend his verified complaint. Among other things, plaintiffs’ first amended compla int added plaintiff Matouk Inve stments and defendant Barrick Properties, prompting the trial c ourt to transfer this action t o business court.

3 John subsequently filed a motion in this Court to dismiss Timo thy’s claim of appeal for lack of appellate jurisdiction, which th is Court denied without prejudi ce pending “further review by the case call panel.” John J Matouk v The Robert Barrick Trust , unpublished order of the Court of Appeals, entered November 4, 2015 (Docket No. 328893).-6- adduced no evidence that Barrick did not actually intend to all ow plaintiff to reacquire the Fidelity property when he allegedly promised to do so, (6) that plaintiffs’ negligence claim was fatally flawed because plaintiffs had cited no legal duty owed them by defendants, (7) that plaintiffs could not pursue an unjust enrichment claim regardin g the Fidelity property because express contracts between the parties existed regarding that pr operty, and (8) that plaintiffs’ conversion claims should be dismissed because “[t]he failure to make a credit against an alleged loan balance is not conversion” and also because such claims we re barred by the applicable three-year statute of limitations.

In response, plaintiffs argued, in relevant part, (1) that pla intiffs did not breach the first amendment because it did not require plaintiffs to repurchase the Fidelity property, instead merely granting them an option to do so, (2) that the first ame ndment and subsequent purchase agreements did not supersede the parties’ agreement regarding t he “parking” arrangement, (3) that defendants had failed to present any evidence that plainti ffs’ hands were unclean and that, in any event, defendants could not defend on the basis of unclean hands because their hands were equally dirty, (4) that plaintiffs had stated actionable claims for both fraudulent and innocent misrepresentation, (5) that the f irst amendment demonstrated th at Barrick owed John a fiduciary duty because the parties had engaged in transactions “for the b enefit of” John, (6) that a genuine issue of material fact remained whether defendants converted pl aintiffs’ propert y by retaining the rent proceeds from the Fidelity property without crediting thos e proceeds against John’s “loan obligations” to defendants, and (7) that plaintiffs’ negligence claim could proceed on the basis that Barrick owed plaintiffs a fiduciary duty.

After considering the matter, t he trial court granted defendan ts summary disposition of all of plaintiffs’ remaining claims. Notably, with regard to plain tiffs’ breach of contract claim, the trial court decided that the “ RECITALS ” section of the first amendment, upon which plaintiffs’ breach of contract claim was la rgely premised, was not part of the parties’ agreement:

[T]he Recitals of the First Amen dment were not identified as pa rt of the terms and conditions of the Agreement – unlike the Global Agreement, whic h provided that “the above mentioned recitals are not mere declarations, but ra ther part of the terms and conditions of this Agr eement.” It follows, therefore , that the Recitals of the First Amendment are not a part of the terms of the parti es’ contract.

Plaintiffs filed this claim of appeal from the trial court’s su mmary disposition ruling, thereby instituting Docket No. 331987.

II. STANDARD OF REVIEW

This Court reviews de novo a tr ial court’s decision regarding a motion for summary disposition. Heaton v Benton Constr Co , 286 Mich App 528, 531; 780 NW2d 618 (2009).

A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff's claim. Summary disposition is approp riate under MCR 2.116(C)(10) if th ere is no genuine issue regarding any mate rial fact and the moving party is entitled to judgment as a matter of law. In reviewing a motion under MCR 2 .116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant-7- documentary evidence of record in the light most favorable to t he nonmoving party to determine whether any genuine issue of material fact e xists to warrant a trial. A genuine issue of mater ial fact exists when the record , giving the benefit of reasonable doubt to the opposing party, leaves open an issue up on which reasonable minds might differ. [ Zaher v Miotke , 300 Mich App 132, 139-140; 832 NW2d 266 (2013) (quotations mar ks and citations omitted).]

“This Court is liberal in finding genuine issues of material fa ct.” Jimkoski v Shupe , 282 Mich App 1, 5; 763 NW2d 1 (2008).

III. ANALYSIS

A. DOCKET NO. 331987

In Docket No. 331987, plaintiffs argue that the trial court er red by granting defendants summary disposition of all of plai ntiffs’ claims under MCR 2.11 6(C)(10). We disagree.

1. BREACH OF CONTRACT

“[I]n regard to breach of contract, a party claiming a breach must establish (1) that there was a contract, (2) that the oth er party breached the contract, and (3) that the party asserting breach of contract suffered damages as a result of the breach.” Doe v Henry Ford Health Sys
, 308 Mich App 592, 601; 865 NW2d 915 (2014).

When interpreting a contract, the examining court must ascertai n the intent of the parties by evaluating the language of the contract in accordanc e with its plain and ordinary meaning. If the language of the contract is clear and unambiguous, it must be enforced as written. A contract is unambiguous, even i f inartfully worded or clumsily arranged, when it fairly admits of but one i nterpretation. Every word, phrase, and clause in a contract must be given effe ct, and contract interpretation that would render any part of the contract surpl usage or nugatory must be avoided. [ McCoig Materials, LLC v Galui Const, Inc , 295 Mich App 684, 694; 818 NW2d 410 (2012) (citations omitted).]

“[S]eparate agreements are treated separately. However, when p arties enter into multiple agreements relating to the same subject-matter, we must read th ose agreements together to determine the parties’ intentions.” Wyandotte Electric Supply Co v Electrical Technology Sys, Inc , 499 Mich 127, 148; 881 NW2d 95 (2016).

Plaintiffs’ argument on appeal is that the parties’ agreement was ambiguous and, thus, that their intent must be determined by a jury at trial, with t he parties permitted to introduce extrinsic evidence regarding their intent. Plaintiffs’ argumen t in this regard is dependent on language found in the first amendment’s “ RECITALS ” section. Plaintiffs have cited no contractual language other than those recitals in support of their argument that the part ies’ written agreement was ambiguous about whether the Fidelity tran saction constitu ted an outright sale or a collateralized loan. Because we conclude that the tr ial court properly determined that such recitals were not part of the terms and conditions of the parties’ agreement, plaintiffs’ instant claim of e rror must fail.-8- The global agreement’s “ RECITALS ” section specifically provi ded that its recitals were “not mere declarations, but rather part of the terms and condit ions of” the global agreement. On the other hand, the first amendmen t to the global agreement did not include such language. A construction of the parties’ ag reement nevertheless treating th e recitals in the first amendment as “part of the terms and conditions of” the parties’ agreement wo uld render the “not mere declarations” language in the global agreement nugatory. In ot her words, if the parties intended the recitals in all of their written agreements to be part of t heir contract, they would not have included explicit language to that effect in only the global agreement while excluding such language from subsequent agreements. Ergo, the trial court cor rectly held that the recitals in the first amendment cannot be constr ued as part of the parties’ agr eement.

Furthermore, even if we consider the recitals in the first ame ndment as part of the parties’ agreement, as plaintiffs urge us to do, we nevertheless discern no ambiguity whether the first amendment was in the form of a collateralized loan agreement or was an agreement regarding an outright sale. The recitals to the first amendment provided th at Barrick had, since entering into the global agreement, “made add itional loans, both secured and non-secured, to [John] and/or entered into transactions for t he benefit of” John, including t he redemption of the Fidelity property. (Emphasis added.) Alth ough splicing the conjunctive “and” and the disjunctive “or” into “and/or” may not be the optimal way to list alternatives, in context the meaning is readily apparent here. The plain meaning expressed is that Barrick had “made additional loans, both secured and non-secured,” to John, or “entered into transaction s for” John’s benefit, or done both. Hence, contrary to plaintiffs’ argument on appeal, the r ecital language does not actually suggest that the Fidelity transaction was in the form of a loan , only that it was either a loan or a transaction for J ohn’s benefit.

And it is indisputable that the first amendment’s provisions r egarding the Fidelity transaction are in the form of an agreement about a contemplate d conveyance, not a secured loan or an option agreement. As the series of contractual agreement s appended to the global agreement demonstrates, the parties knew how to create an optio n to purchase real estate and how to grant a security interest in collateral when they wished to do so. The pertinent provisions of the first amendment, however, merely state, “[o]n or before August 15, 2009, [John] shallpay the sum of $3,000,000 to Barrick” and that “[u]pon receipt of” said payment, “Barrick shall transfer” the Fidelity property to John. (Emphases added.) “T he word ‘shall’ is generally used to designate a mandatory provision,” Old Kent Bank v Kal Kustom, Enterprises , 255 Mich App 524, 532; 660 NW2d 384 (2003), and no contrary intent is appare nt under the terms of the agreement. Had the parties wished to provide John an “option” to reacquire the Fidelity property, as plaintiffs argue, they would have used the phrase “ may pay the sum of $3,000,000 to Barrick,” not “ shall pay the sum.” Moreover, with regard to the Fidelity transacti on, the agreement does not include the terms “loan,” “collateral,” “sec urity,” or any other words to that effect. For those reasons, we reject plaintiffs’ contention th at the first amendment is ambiguous about whether the Fidelity trans action memorialized a secured l oan.
Additionally, it is undisputed that because John failed to pay the agreed sum to Barrick by the agreed date, plaintiffs failed to perform under the firs t amendment.. Thus, the trial court properly determined that there is no genuine issue of material fact that plaintiffs were the first to materially breach the parties’ agreement and cannot maintain an action against defendants for subsequently breaching it. Plaintiffs cannot fail to pay for a multimillion dollar parcel of real-9- estate, then complain that the seller failed to convey the prop erty as agreed. See Michaels v Amway Corp , 206 Mich App 644, 650; 522 NW2d 703 (1994). Accordingly, we hold that summary disposition of plaintiffs ’ breach of contract claim was appropriately granted.

2. EQUITABLE CLAIMS

Plaintiffs also sought the aid of equity in the trial court, a sserting equitable claims including that of unjust enrichment, see AFT Mich v Michigan , 303 Mich App 651, 677; 846 NW2d 583 (2014), accounting, see Bondy v Davis , 40 Mich App 153, 159; 198 NW2d 418 (1972), breach of fiduciary duty, see Rapistan Corp v Michaels , 203 Mich App 301, 313-314; 511 NW2d 918 (1994), constructive trust, see McPeak v McPeak , 457 Mich 311, 314-315; 577 NW2d 670 (1998), and equitable mortgage, see Burkhardt v Bailey , 260 Mich App 636, 659; 680 NW2d 453 (2004).

The trial court did not address defendants’ unclean hands defe nse. However, as an alternative ground for affirmance, 4 we rule that plaintiffs’ equita ble claims are barred by the doctrine of unclean hands.

“The clean hands maxim is an integral part of any action in eq uity.” Stachnik v Winkel
, 394 Mich 375, 382; 230 NW2d 529 (1975). The doctrine of unclea n hands “is a self-imposed ordinance that closes the doors of a court of equity to one tai nted with inequitableness or bad faith relative to the matter in w hich he seeks relief, however improper may have been the behavior of the defendant.” Id. (quotation marks and citations omitted). “The very foundatio n of a court of equity is good conscience, and it will not lend i ts aid . . . to assist law violators.” Society of Good Neighbors v Van Antwerp , 324 Mich 22, 28; 36 NW2d 308 (1949). Further, “a tortious act can never be the foundation of an equitable right. ” Putnam v Fitzgerald , 44 Mich 113, 116; 6 NW 198 (1880). “Since the clean hands maxim is des igned to preserve the integrity of the judiciary, courts may apply it on their own motion even though it has not been raised by the parties or the courts below.” Stachnik , 394 Mich at 382.

Although it is true that “[a] defendant with unclean hands may not defend on the ground that the plaintiff has unclean hands as well,” Attorney General v PowerPick Club , 287 Mich App 13, 53; 783 NW2d 515 (2010), that rule does not mean that a cou rt will afford equitable relief to the plaintiff in such situati ons. Instead, under the doctrine of in pari delicto , when the parties are equally in the wrong, “the law wil l not lend itself to afford r elief to one as against the other, but will leave them as it finds them.” Orzel v Scott Drug Co , 449 Mich 550, 557; 537 NW2d 208 (1995) (quotation marks and citation omitted). See also Pantely v Garris, Garris & Garris, PC
, 180 Mich App 768, 774; 447 NW2d 864 (1989) (“ In pari delicto , as a common law doctrine, expresses the principle that w rongdoers ought each to bear the untoward consequences of their

4 See Demski v Petlick , 309 Mich App 404, 441; 873 NW2d 596 (2015) (“[T]his Court wil l affirm when the trial court reaches the right result for the wr ong reason.”); Hanton v Hantz Fin Servs, Inc , 306 Mich App 654, 669; 858 NW2d 481 (2014) (“An appellee may argue alternative grounds for affirmance without fili ng a cross-appeal if the app ellee does not seek a more favorable decision.”).-10- wrongdoing without legal recompense or recourse. . . . [C]ourts should not lend their aid to one who founds a cause of action on an immoral or illegal act. . . . Suit is barred not because the defendant is right, but rather be cause the plaintiff, being equ ally wrong, has forfeited any claim to the aid of the court.”).

At a minimum, the “parking” arrangement between the parties ma y be construed as an immoral attempt to defraud John’s creditors by sheltering asset s from collection. See Quirk v Thomas , 6 Mich 76, 101 (1858) (opinion of M ANNING , J.) (“A sale or assignment for the purpose of delaying, hindering, or defra uding a creditor in the collect ion of his debt, was illegal at the common law, and is, in itself, immoral, and against public poli cy. And the statutes declaring such transactions void as again st creditors, are only in affirm ance of the common law on that subject.”) (quotation marks and citation omitted). Such conduc t was also actionable under the Uniform Fraudulent Transfer Act (UFTA), MCL 566.31 et seq. , most notably pursuant to MCL 566.34. Hence, plaintiffs’ hands are unclean, and they are une ntitled to equitable relief. Moreover, even assuming that the parties’ hands are equally dir ty, under the doctrine of in pari delicto the parties should be left in th e very situation that they hav e fashioned. When he sought to defraud his creditors by hiding assets, John assumed the ris k that his immoral conduct might be greeted in like kind. There is, as the old aphorism puts it , no honor among thieves.

Because plaintiffs’ hands are unclean, they cannot seek the ai d of equity. Thus, the trial court could not have committed error warranting reversal by sum marily disposing of plaintiffs’ unjust enrichment, 5 accounting, breach of fiduciary duty, constructive trust, and equitable mortgage claims.

3. MISREPRESENTATION

To establish a prima facie claim of either fraudulent or innoc ent misrepresentation, a plaintiff must prove, among other things, that the defendant ma de a material misrepresentation. Zaremba Equip, Inc v Harco Nat’l Ins Co , 280 Mich App 16, 38-39; 761 NW2d 151 (2008). Here, with regard to both fraudulent and innocent misrepresenta tion, the misrepresentation alleged by plaintiffs is that Barrick represented that, after h e received the Fidelity property from plaintiffs, he would permit plaintiffs to reacquire it for fair value. Viewing the record evidence in the light most favorable to plaintiffs as the nonmoving part y, there is no genuine issue of material fact that Barrick did subsequently agree to permit pl aintiffs to reacquire the Fidel ity property for a mutually agreed sum. Indeed, John’s own affidav it acknowledges that, in 2012, he and Barrick “agreed that [John] c ould redeem the Fidelity Prope rty and fully repay Barrick for all outstanding loan obligations . . . by paying $2.95 million, ” further agreeing “that the amount of credit given for rents paid on the Fidelity Property would b e addressed later.” There is, as such, no triable question whethe r Barrick’s representation was false, and the trial court did not err by granting defendants summary disposition of plaintiffs’ m isrepresentation claims.

5 Under well-settled law, the existence of express contracts bet ween the parties covering the same subject matter was also fat al to plaintiffs’ unjust enrich ment claim. See, e.g., Bellevue Ventures, Inc v Morang-Kelly Inv, Inc , 302 Mich App 59, 64; 836 NW2d 898 (2013).-11- 4. CONVERSION

It is undisputed that actual legal title to the Fidelity prope rty passed to defendants before they began to retain the rent proceeds from the Fidelity proper ty. Nevertheless, plaintiffs contend that defendants converted the rent proceeds by retainin g them without crediting the rent received against plaintiffs’ “loan obligations.” Assuming that such loan obligations existed and were enforceable, as plaintiffs claim, plaintiffs’ common-law c onversion claim still necessarily fails. In the creditor-debtor c ontext, “[t]o support an actionfor conversion of money, the defendant must have obtained the money without the owner’s consent to the creation of a debtorcreditor relationship and must have had an obligation to return the specific money entrusted to his care .” Lawsuit Fin, LLC v Curry , 261 Mich App 579, 591; 683 NW2d 233 (2004) (quotation marks and citation omitted; emphasis added). Here, plaintiffs allege that they did consent to the creation of a debtor-creditor re lationship, whereby defendants would retain the rental proceeds from the Fidelity property (i.e., the specific money entrusted to their care), crediting such amounts against existing loan obl igations. In consequence, pla intiffs are, as a matter of law, unentitled to maintain a common- law conversion action against d efendants.

Likewise, although statutory conve rsion is a distinct claim, Aroma Wines & Equip, Inc v Columbian Distrib Servs, Inc , 497 Mich 337, 361; 871 NW2d 136 (2015), in this case the same outcome is appropriate for both conversion claims. Because def endants did not “convert” the rent proceeds under the common-law principles that govern conve rsion, defendants are not liable for statutory conversion either . Because the term “converting” in MCL 600.2919a is one with a particular meaning under the common law, we construe it as such . See MCL 8.3a (“[T]echnical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculi ar and appropriate meaning.”). Under the applicable legal meaning, defendants’ retention of th e rent proceeds did not constitute a “converting” of plaintiffs’ assets to defendants’ own use. T hus, the trial court did not err by summarily disposing of plaintiffs ’ statutory conversion claim.

5. NEGLIGENCE

Finally, we conclude that the tr ial court did not err by grant ing defendants summary disposition of plaintiffs’ negligence claim. Plaintiffs have f ailed to identify a legally cognizable duty owed them by defendants, which is an essential element of any negligence claim. See Loweke v Ann Arbor Ceiling & Partition Co, LLC , 489 Mich 157, 162; 809 NW2d 553 (2011). “[T]he question of whether the common law, as a matter of publi c policy, ought to impose” a legal duty is one of law and is d ecided by courts, not juries. Chelik v Capitol Transp, LLC , 313 Mich App 83, 89; 880 NW2d 350 (2015). Ordinarily, courts consi der a number of factors in deciding whether to impose a lega l duty, including “the relatio nship of the parties, the foreseeability of the harm, the burden on the defendant, and th e nature of the risk presented.” Hill v Sears, Roebuck & C o, 492 Mich 651, 661; 822 NW2d 190 (2012) (quotation marks and citation omitted).

But here, plaintiffs offered the trial court no argument that such factors militated in favor of imposing a legal duty on defe ndants. Instead, plaintiffs ar gued, and continue to argue in this Court, that their negligence claim can be maintained on the bas is of a fiduciary duty that Barrick allegedly owed plaintiffs. As we have already explained, howev er, that equitable theory is-12- barred by the doctrine of unclean hands. Consequently, even if a negligence claim can be pursued based on the existence of a fiduciary duty—plaintiffs h ave cited no authority indicating that such a theory is viable—plaintiffs cannot proceed under th at theory in this case. Further, plaintiffs could not expect the trial court to fashion some alt ernative duty argument on their behalf, nor will we do so. The Courts of this state do not serve as research assistants for the parties before them. See Walters v Nadell , 481 Mich 377, 388; 751 NW2d 431 (2008) (“Trial courts are not the research assistants of the litigants; the pa rties have a duty to fully present their legal arguments to the court for its resolution of their disput e.”); Mitcham v City of Detroit , 355 Mich 182, 203; 94 NW2d 388 (1959) (“It is not enough for an app ellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to s ustain or reject his position.” ) (citations omitted).

In any event, we fail to see how any legal duty plaintiffs mig ht identify could viably support their negligence claim under the circumstances at bar. Generally, “a tort action will not lie when based solely on the nonpe rformance of a contractual du ty.” Fultz v Union-Commerce Assoc , 470 Mich 460, 466; 683 NW2d 587 (2004). The threshold inquir y “is whether the defendant owed a duty to the plaintiff that is separate and dis tinct from the defendant’s contractual obligations. If no independent duty exists, no tor t action based on a contract will lie.” Id . (emphasis added). Upon plenary review of the pleadings and t he record, we discern no duty—aside from contractual dutie s—that defendants owed plainti ffs. Because plaintiffs have identified no legal duty to s upport their negligence claim, the trial court did not err by summarily disposing of it.

B. DOCKET NO. 328983

Having concluded that the trial court properly granted defenda nts summary disposition of all claims in this action, we turn to Timothy’s claim of appeal . Before reaching the substantive merits, this Court will “[a]s a rule, . . . decline to conside r” issues “that it does not have the power to determine, including those that are moot.” In re MCI Telecommunications Complaint
, 460 Mich 396, 436 n 13; 596 NW2d 164 (1999). An issue is moot if “it presents nothing but abstract questions of law, which do not rest upon existing fact s or rights,” Anglers of AuSable, Inc v Dep’t of Environmental Quality , 489 Mich 884 (2011) (quotation marks and citation omitted), or “when a subsequent event renders it impossible for the appellate court to fashion a remedy,” Garrett v Washington , 314 Mich App 436, 450; 886 NW2d 762 (2016) (quotation marks and citation omitted). Her e, the record indicates that T imothy was never actually deposed pursuant to the order he seeks to appeal, nor, given our ruling in Docket No. 331987, will he be deposed. Consequently, Timothy’ s claim of appeal is moot.

IV. CONCLUSION

In Docket No. 328983, we dismiss, as moot, Timothy’s claim of appeal. Because we issue no substantive ruling in Docket No. 328983, no party may tax costs in that matter pursuant to MCR 7.219.-13- In Docket No. 331987, we affirm the trial court’s contested su mmary disposition ruling. As the prevailing parties, defe ndants may tax costs pursuant to MCR 7.219.

/s/ Jane E. Markey /s/ Kurtis T. Wilder