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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UNPUBLISHED 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: MARKEY, P.J., and WILDER and SWARTZLE, JJ. 

PER CURIAM. 

 These consolidated appeals arise out of distinct orders entered below by different circuit 

court judges. The change in judges resulted from a midstream transfer of the action below to 

business court. In Docket No. 328983, nonparty-appellant, Timothy Matouk (Timothy),claims 

an appeal as of right from the trial court’s order granting the motion of plaintiff, John J. Matouk 
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(John), to compel Timothy to attend a deposition and answer certain questions.1

 Because he 

neither was nor will be deposed, we conclude that Timothy’s claim of appeal is moot. 

 In Docket No. 331987, in which John and Matouk Investments of Novi, LLC (Matouk 

Investments) (collectively, plaintiffs), 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) (collectively, defendants) summary 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 transferring title to those assets to Barrick, such attempt being described 

euphemistically by the parties as the “parking” of John’s assets with Barrick. 

 By affidavit, John testified as follows: 

 1. I am a real estate investor who fell into financial hardship when the 

real estate market imploded. 

 2. Facing foreclosure on my personal residence as well as other 

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 transactions 

with Robert L. Barrick or various financial entities under his control (“Barrick”) 

in which Barrick made certain loans and advances to me (both secured and 

unsecured) in exchange for an oral promise that I would repay him for the value 

of those loans when my personal finances improved. 

* * * 

 5. Consistent with our loan arrangements, I transferred the title to 

certain real and personal properties to Barrick. These transfers 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 property 

situated at 43420 Grand River Ave., Novi, MI, where Fidelity Investments was 

the major tenant (the “Fidelity Property”). 

 

1

 John argues that this Court lacks appellate jurisdiction over Timothy’s claim of appeal. 
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 7. At the time the Fidelity Property was provided to Barrick, it had 

been sold at sheriff’s auction by Huntington Bank for $1,519,937.91. 

* * * 

 10. Barrick and I agreed that the Fidelity Property would serve as 

additional collateral for loans that Barrick had previously provided to me, because 

the existing collateral provided to that point had been insufficient. 

 11. Barrick did not repay me or any business entity under my control 

any money for the Fidelity Property, nor did he loan me any additional 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 the Fidelity 

Property and fully repay Barrick for all outstanding loan obligations that I owed 

to Barrick, by paying $2.95 million. We also decided that the amount of credit 

given for rents paid on the Fidelity Property would be addressed later. 

* * * 

 26. Barrick fraudulently induced me into believing that I could 

reacquire the Fidelity Property once I repair [sic] certain outstanding loan 

obligations. 

 27. A third party purchaser acquired the Fidelity Property from Barrick 

Properties. . . . 

 As referenced in John’s affidavit testimony, the “parking” arrangement between John and 

Barrick involved numerous assets and was memorialized by several 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 mentioned recitals are not mere 

declarations, but rather part of the terms and conditions of this 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 between the parties. Such 

contracts granted Barrick (as trustee of his trust) a variety of interests in John’s real and personal 

property. The contracts in question demonstrate a sophisticated understanding of contract law 

and secured transactions and include outright purchase agreements, a lease, an assignment of a 

lease, several options to purchase real estate, a pledge of security consisting of membership 

interests in a limited liability company (LLC), and a security agreement. 
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 Matouk Investments later assigned the right to redeem the Fidelity property to Barrick 

Properties. Matouk Investments also provided a warranty deed conveying the Fidelity property 

to Barrick Properties, which 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 Agreement 

(“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 additional 

loans, both secured and non-secured, to [John] and/or entered into transactions for 

the benefit of [John], which can be summarized as follows: 

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

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

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

 (iv) $ 90,000 - Advance secured 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 the amount 

$3,300,000. 

In pertinent part, the remainder of the first amendment provides, 

 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 Building to [John] or an 

entity to be formed by [John]. 

* * * 

 7. Except as otherwise provided herein, all other terms and condition 

[sic] of the original Global Agreement, and any subsequent financing related 

agreement between the Parties, shall remain in full force and effect. 

John failed to make the $3 million payment to Barrick described in ¶ 1 of the first amendment. 
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 On April 25, 2012, Barrick Properties and NOVI/GR LLC (NOVI/GR)—an entity John 

had formed to reacquire the Fidelity property—entered into a purchase agreement under which 

NOVI/GR agreed to pay $2.95 million, “plus or minus net pro-rations and adjustments as 

provided” in the purchase agreement, 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 and his Trust, asserting, 

among others, the following claims: (1) breach of contract, (2) fraudulent misrepresentation, (3) 

innocent misrepresentation, (4) breach of fiduciary duty, (5) unjust enrichment, (6) common-law 

conversion, (7) statutory conversion, (8) accounting, and (9) negligence.2

 At defendant’s 

motion, the trial court subsequently granted Barrick and his Trust partial summary disposition of 

several claims other than those at issue in this appeal. 

 The matter proceeded to discovery. Timothy was listed as a potential witness in both 

John’s witness list and that filed by defendants Barrick and the Trust. In July 2015, John filed a 

motion to compel Timothy’s compliance with a subpoena to testify at a deposition. John alleged 

that Timothy had ignored a previous subpoena to appear for a deposition and had, through 

counsel, indicated that he was only willing to be deposed if the “scope” of the inquiry excluded 

certain questions. After entertaining oral argument on the matter, the trial court granted John’s 

motion to compel, thereby ordering Timothy to appear for his deposition and to answer the 

disputed questions. Timothy filed a claim of appeal from the trial court’s order compelling his 

deposition testimony, thereby instituting 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 pursue a breach of contract claim against defendants regarding the 

Fidelity property because plaintiffs breached the first amendment, failing to pay defendants $3.3 

million within the agreed timeframe, (2) that the first amendment and subsequent purchase 

agreements superseded any prior oral agreement between the parties regarding the alleged 

“parking” arrangement, (3) that all of plaintiffs’ equitable claims were barred by the doctrine of 

unclean hands, (4) that plaintiffs’ innocent and intentional misrepresentation claims failed 

because the misrepresentations of which plaintiffs complained were about future conduct, not of 

a past or then-existing fact, (5) that even if such purported misrepresentations were considered 

under a fraudulent inducement theory, plaintiffs’ claim would still fail because plaintiffs had 

 

2

 John later sought and was granted leave to amend his verified complaint. Among other things, 

plaintiffs’ first amended complaint added plaintiff Matouk Investments and defendant Barrick 

Properties, prompting the trial court to transfer this action to business court. 

3

 John subsequently filed a motion in this Court to dismiss Timothy’s claim of appeal for lack of 

appellate jurisdiction, which this Court denied without prejudice 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). 
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adduced no evidence that Barrick did not actually intend to allow 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 regarding the Fidelity property because 

express contracts between the parties existed regarding that property, 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 were barred by the applicable 

three-year statute of limitations. 

 In response, plaintiffs argued, in relevant part, (1) that plaintiffs 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 amendment and subsequent purchase 

agreements did not supersede the parties’ agreement regarding the “parking” arrangement, (3) 

that defendants had failed to present any evidence that plaintiffs’ 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 first amendment demonstrated that Barrick owed John a fiduciary 

duty because the parties had engaged in transactions “for the benefit of” John, (6) that a genuine 

issue of material fact remained whether defendants converted plaintiffs’ property by retaining the 

rent proceeds from the Fidelity property without crediting those 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, the trial court granted defendants summary disposition of all 

of plaintiffs’ remaining claims. Notably, with regard to plaintiffs’ breach of contract claim, the 

trial court decided that the “RECITALS” section of the first amendment, upon which plaintiffs’ 

breach of contract claim was largely premised, was not part of the parties’ agreement: 

[T]he Recitals of the First Amendment were not identified as part of the terms and 

conditions of the Agreement – unlike the Global Agreement, which provided that 

“the above mentioned recitals are not mere declarations, but rather part of the 

terms and conditions of this Agreement.” It follows, therefore, that the Recitals

of the First Amendment are not a part of the terms of the parties’ contract. 

Plaintiffs filed this claim of appeal from the trial court’s summary disposition ruling, thereby 

instituting Docket No. 331987. 

II. STANDARD OF REVIEW 

 This Court reviews de novo a trial 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 appropriate under MCR 2.116(C)(10) if there is no 

genuine issue regarding any material 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 
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documentary evidence of record in the light most favorable to the nonmoving 

party to determine whether any genuine issue of material fact exists to warrant a 

trial. A genuine issue of material fact exists when the record, giving the benefit of 

reasonable doubt to the opposing party, leaves open an issue upon which 

reasonable minds might differ. [Zaher v Miotke, 300 Mich App 132, 139-140; 

832 NW2d 266 (2013) (quotations marks and citations omitted).] 

“This Court is liberal in finding genuine issues of material fact.” 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 erred by granting defendants 

summary disposition of all of plaintiffs’ claims under MCR 2.116(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 other 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 ascertain the intent of the 

parties by evaluating the language of the contract in accordance 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 if inartfully 

worded or clumsily arranged, when it fairly admits of but one interpretation. 

Every word, phrase, and clause in a contract must be given effect, and contract 

interpretation that would render any part of the contract surplusage 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 parties enter into multiple 

agreements relating to the same subject-matter, we must read those 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 the parties permitted to introduce 

extrinsic evidence regarding their intent. Plaintiffs’ argument 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 parties’ 

written agreement was ambiguous about whether the Fidelity transaction constituted an outright 

sale or a collateralized loan. Because we conclude that the trial court properly determined that 

such recitals were not part of the terms and conditions of the parties’ agreement, plaintiffs’ 

instant claim of error must fail. 
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 The global agreement’s “RECITALS” section specifically provided that its recitals were 

“not mere declarations, but rather part of the terms and conditions of” the global agreement. On 

the other hand, the first amendment to the global agreement did not include such language. A 

construction of the parties’ agreement nevertheless treating the recitals in the first amendment as 

“part of the terms and conditions of” the parties’ agreement would render the “not mere 

declarations” language in the global agreement nugatory. In other words, if the parties intended 

the recitals in all of their written agreements to be part of their 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 correctly held that the recitals in the 

first amendment cannot be construed as part of the parties’ agreement. 

 Furthermore, even if we consider the recitals in the first amendment 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 that Barrick had, since entering into 

the global agreement, “made additional loans, both secured and non-secured, to [John] and/or

entered into transactions for the benefit of” John, including the redemption of the Fidelity 

property. (Emphasis added.) Although 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 transactions for” John’s benefit, or done 

both. Hence, contrary to plaintiffs’ argument on appeal, the recital 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 John’s benefit. 

 And it is indisputable that the first amendment’s provisions regarding the Fidelity 

transaction are in the form of an agreement about a contemplated conveyance, not a secured loan 

or an option agreement. As the series of contractual agreements appended to the global 

agreement demonstrates, the parties knew how to create an option 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] shall pay 

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.) “The 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 apparent 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 transaction, the 

agreement does not include the terms “loan,” “collateral,” “security,” or any other words to that 

effect. For those reasons, we reject plaintiffs’ contention that the first amendment is ambiguous 

about whether the Fidelity transaction memorialized a secured loan. 

 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 first 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 
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estate, then complain that the seller failed to convey the property 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, asserting 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 defense. However, as an 

alternative ground for affirmance,4

 we rule that plaintiffs’ equitable claims are barred by the 

doctrine of unclean hands. 

 “The clean hands maxim is an integral part of any action in equity.” Stachnik v Winkel, 

394 Mich 375, 382; 230 NW2d 529 (1975). The doctrine of unclean hands “is a self-imposed 

ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad 

faith relative to the matter in which he seeks relief, however improper may have been the 

behavior of the defendant.” Id. (quotation marks and citations omitted). “The very foundation 

of a court of equity is good conscience, and it will not lend its 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 designed 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 court will afford equitable relief to 

the plaintiff in such situations. Instead, under the doctrine of in pari delicto, when the parties are 

equally in the wrong, “the law will not lend itself to afford relief 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 wrongdoers 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 will 

affirm when the trial court reaches the right result for the wrong 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 filing a cross-appeal if the appellee does not seek a more 

favorable decision.”). 
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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 because the plaintiff, being equally wrong, has forfeited any claim 

to the aid of the court.”). 

 At a minimum, the “parking” arrangement between the parties may be construed as an 

immoral attempt to defraud John’s creditors by sheltering assets from collection. See Quirk v 

Thomas, 6 Mich 76, 101 (1858) (opinion of MANNING, J.) (“A sale or assignment for the purpose 

of delaying, hindering, or defrauding a creditor in the collection of his debt, was illegal at the 

common law, and is, in itself, immoral, and against public policy. And the statutes declaring 

such transactions void as against creditors, are only in affirmance of the common law on that 

subject.”) (quotation marks and citation omitted). Such conduct 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 unentitled to equitable relief. 

Moreover, even assuming that the parties’ hands are equally dirty, under the doctrine of in pari 

delicto the parties should be left in the very situation that they have fashioned. When he sought 

to defraud his creditors by hiding assets, John assumed the risk 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 aid of equity. Thus, the trial 

court could not have committed error warranting reversal by summarily 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 innocent misrepresentation, a 

plaintiff must prove, among other things, that the defendant made 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 misrepresentation, the misrepresentation 

alleged by plaintiffs is that Barrick represented that, after he 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 party, there is no genuine issue of 

material fact that Barrick did subsequently agree to permit plaintiffs to reacquire the Fidelity 

property for a mutually agreed sum. Indeed, John’s own affidavit acknowledges that, in 2012, he 

and Barrick “agreed that [John] could redeem the Fidelity Property 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 be addressed later.” There is, as 

such, no triable question whether Barrick’s representation was false, and the trial court did not 

err by granting defendants summary disposition of plaintiffs’ misrepresentation claims. 

 

5

 Under well-settled law, the existence of express contracts between the parties covering the 

same subject matter was also fatal to plaintiffs’ unjust enrichment claim. See, e.g., Bellevue 

Ventures, Inc v Morang-Kelly Inv, Inc, 302 Mich App 59, 64; 836 NW2d 898 (2013). 
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4. CONVERSION 

 It is undisputed that actual legal title to the Fidelity property passed to defendants before 

they began to retain the rent proceeds from the Fidelity property. Nevertheless, plaintiffs 

contend that defendants converted the rent proceeds by retaining 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 conversion claim still necessarily 

fails. In the creditor-debtor context, “[t]o support an action for 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 relationship, 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 obligations. In consequence, plaintiffs are, as a matter of law, 

unentitled to maintain a common-law conversion action against defendants. 

 Likewise, although statutory conversion 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 defendants did not “convert” the 

rent proceeds under the common-law principles that govern conversion, 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 peculiar and appropriate meaning.”). 

Under the applicable legal meaning, defendants’ retention of the rent proceeds did not constitute 

a “converting” of plaintiffs’ assets to defendants’ own use. Thus, the trial court did not err by 

summarily disposing of plaintiffs’ statutory conversion claim. 

5. NEGLIGENCE 

 Finally, we conclude that the trial court did not err by granting defendants summary 

disposition of plaintiffs’ negligence claim. Plaintiffs have failed 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 public policy, ought to impose” a 

legal duty is one of law and is decided by courts, not juries. Chelik v Capitol Transp, LLC, 313 

Mich App 83, 89; 880 NW2d 350 (2015). Ordinarily, courts consider a number of factors in 

deciding whether to impose a legal duty, including “the relationship of the parties, the 

foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.” 

Hill v Sears, Roebuck & Co, 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 defendants. Instead, plaintiffs argued, and continue to argue in this 

Court, that their negligence claim can be maintained on the basis of a fiduciary duty that Barrick 

allegedly owed plaintiffs. As we have already explained, however, that equitable theory is 
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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 have cited no authority indicating 

that such a theory is viable—plaintiffs cannot proceed under that theory in this case. Further, 

plaintiffs could not expect the trial court to fashion some alternative 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 parties have a duty to fully present their 

legal arguments to the court for its resolution of their dispute.”); Mitcham v City of Detroit, 355 

Mich 182, 203; 94 NW2d 388 (1959) (“It is not enough for an appellant 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 sustain or reject his position.”) (citations omitted). 

 In any event, we fail to see how any legal duty plaintiffs might identify could viably 

support their negligence claim under the circumstances at bar. Generally, “a tort action will not 

lie when based solely on the nonperformance of a contractual duty.” Fultz v Union-Commerce 

Assoc, 470 Mich 460, 466; 683 NW2d 587 (2004). The threshold inquiry “is whether the 

defendant owed a duty to the plaintiff that is separate and distinct from the defendant’s 

contractual obligations. If no independent duty exists, no tort action based on a contract will 

lie.” Id. (emphasis added). Upon plenary review of the pleadings and the record, we discern no 

duty—aside from contractual duties—that defendants owed plaintiffs. Because plaintiffs have 

identified no legal duty to support 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 defendants 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 consider” 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 facts 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). Here, the record indicates that Timothy 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 summary disposition ruling. 

As the prevailing parties, defendants may tax costs pursuant to MCR 7.219. 

/s/ Jane E. Markey 

/s/ Kurtis T. Wilder