Ziad Kasi Salah Al-Zabet v. Peter Ansara ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ZAID KASI SALAH AL-ZABET, UNPUBLISHED
January 22, 2019
Plaintiff-Appellant,
v No. 340481
Macomb Circuit Court
PETER ANSARA and ANTONE ANSARA, also LC No. 2017-001883-CZ
known as TONY ANSARA,
Defendants-Appellees.
Before: GLEICHER, P.J., and STEPHENS and O’BRIEN, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s opinion and order granting summary
disposition to defendants under MCR 2.116(C)(4), (7), (8), and (10). We affirm in part, reverse
in part, and remand for further proceedings.
I. BASIC FACTS
This case arises from allegations that defendants’ nonparty brother—Sam Ansara—
fraudulently induced plaintiff into giving Sam money as part of a scheme that defendants were
allegedly aware of and benefited from. Plaintiff resides in the city of Amman in the country of
Jordan. Defendants are residents of Michigan and operate jewelry stores. According to
plaintiff’s complaint, Sam formerly lived in Amman, and while he did, he “solicited” plaintiff on
January 10, 2013, to invest “in the diamond business shared by Sam and his Defendant brothers.”
Plaintiff allegedly gave Sam “147,000 Jordinian Dinars, which is the equivalent of $204,000.00
United States dollars.” Sam “assured” plaintiff “that he would double the amount as a return on
his investment.” According to the complaint, on June 28, 2013, Sam tendered plaintiff a check
for 147,000 dinars, but when plaintiff went to deposit the check, it bounced. Sam “immediately
thereafter . . . fled to the United States.”
Count I of plaintiff’s complaint alleged “Fraud and/or misrepresentation.” This count
alleged that defendants “conspired with” Sam “to obtain an investment from the Plaintiff in
jewelry stores owned by the Defendants” in Michigan, and that defendants “were well aware as
well as active and/or silent participants in the conspiracy to defraud Plaintiff.” The count went
on to allege that (1) defendants “made certain material representations to the Plaintiff” about his
“investment” “through their brother Sam,” (2) “Defendants were acting with direct knowledge of
their activities with [Sam], as well as benefited from said activities,” and (3) “at the time said
representations were made, Defendants intended for Plaintiff to rely upon the same.” The count
also stated that at the time the representations were made, “Defendants knew or should have
known that [they were] false” or “were made with reckless disregard” of the truth, and plaintiff
relied on those representations to his detriment. Count II of plaintiff’s complaint alleged
“Conversion.” For that count, plaintiff alleged that defendants wrongfully obtained—and
remained in wrongful possession of—plaintiff’s money, despite plaintiff’s demands that they
return it. Count III of plaintiff’s complaint alleged “Unjust Enrichment.” That count
incorporated the allegations from the other counts, and then stated that “with Defendants[’]
conduct of retaining 147,000 Jordanian Dinars . . . Defendants have received the benefit of the
Plaintiff’s monies, without appropriate consideration,” and concluded that defendants had
therefore “been unjustly enriched” in that amount.
On June 20, 2017, in lieu of filing an answer, defendant Antone filed a motion for
summary disposition—which Peter later joined—under MCR 2.116(C)(4), (7), (8), and (10).
Antone argued that the trial court lacked jurisdiction—and that summary disposition was thus
warranted under MCR 2.116(C)(4)—because the courts of Jordan had exclusive jurisdiction.
Antone claimed that a Michigan court could not “fairly administer justice” because there was not
“a scintilla of evidence” that the relevant events were connected to “American soil, let alone
Oakland County . . . or Macomb County, Michigan.”
Antone then contended that, even if the trial court had jurisdiction, all of plaintiff’s
counts should nonetheless be dismissed. Antone first addressed plaintiff’s count of fraud, and
argued that he was entitled to summary disposition under MCR 2.116(C)(8) because plaintiff
failed to “plead fraud with the requisite particularity[.]” Antone asserted that “[p]laintiff’s
pleadings fail to demonstrate any facts that indicate [a] single action taken by [Antone], or how
[Antone] personally made any promise to Plaintiff that Plaintiff reasonably relied upon to his
detriment”; all of the “alleged actions were undertaken by Sam . . . in the country of Jordan.”
Alternatively, Antone argued that plaintiff’s fraud claim should fail as a matter of law because
plaintiff’s claim was premised on a speculative investment that did not “meet perceived
expectations.” Antone asserted that it was unreasonable to assume that every investment would
meet expectations, that fraud could not be predicated on a promise, and that plaintiff’s count
sounded in contract, not fraud.
As for plaintiff’s count for conversion, Antone argued that it was barred by the statute of
limitations. Antone asserted that the statute of limitations for conversion was three years under
MCL 600.5805(10), and that plaintiff’s claim of conversion was filed well past the three-year
limit. Antone lastly contended that plaintiff’s unjust enrichment claim failed as a matter of law
because plaintiff did not explain how either Antone or Peter benefited from plaintiff’s money,
and there was “no privity of agreement between Plaintiff and [Antone] through which [the trial
court] could impose a quasi-contractual remedy such as Unjust Enrichment.”
In response, plaintiff first addressed defendants’ subject matter jurisdiction argument and
contended that the trial court did have subject matter jurisdiction because no statute or provision
of the constitution precluded the court’s jurisdiction. Plaintiff asserted that the trial court could
“adjudicate” all of his claims—fraud, conversion, and unjust enrichment—so the trial court had
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jurisdiction. As for defendants’ claim that plaintiff failed to properly plead fraud, plaintiff
contended that his complaint sufficiently laid out allegations of fraud. Plaintiff argued that
defendants’ claim that plaintiff could not “substantiate his allegations” was premature because
discovery had not yet taken place. Turning to defendants’ argument that plaintiff’s conversion
claim was time-barred, plaintiff asserted that conversion was subject to a six-year statute of
limitations, so his claim was timely filed. Lastly, plaintiff argued that defendants were not
entitled to summary disposition on his unjust enrichment claim because plaintiff properly
pleaded a claim for unjust enrichment that put defendants on sufficient notice of the claim.
The trial court held a hearing on defendants’ motion for summary disposition and took
the motion under advisement. On September 18, 2017, the trial court issued an opinion and
order granting defendants’ motion. In deciding whether it had subject matter jurisdiction, the
trial court recited the facts in the complaint that the relevant events took place in Jordan, and then
concluded that plaintiff’s response to defendants’ argument was “devoid of explanation, detail,
and citation to relevant legal authority,” so it was not “properly before the Court and it need not
be considered.” The trial court concluded that “defendants’ motion must be granted, pursuant to
MCR 2.116(C)(4).”
The trial court went on to hold that, even if it had jurisdiction, defendants would still be
entitled to summary disposition on all of plaintiff’s claims. On the fraud count, the trial court
held that summary disposition was proper because plaintiff failed to allege (1) “that defendants
made any representations about any alleged investment or transfer of money,” or (2) “how
defendants personally caused plaintiff to act upon the alleged misrepresentation.” The trial court
pointed out that all of the claims “concern Sam Ansara, not defendants,” and concluded that
summary disposition was proper under MCR 2.116(C)(8).
As for plaintiff’s conversion claim, the trial court held that the three-year statute of
limitations applied, so plaintiff’s claim was time-barred and summary disposition for defendants
was proper under MCR 2.116(C)(7). Lastly, addressing plaintiff’s unjust enrichment claim, the
trial court found that plaintiff “failed to establish any of the . . . elements to sustain a claim of
unjust enrichment” or “to provide any factual support for his claim of unjust enrichment,” and
concluded that summary disposition was proper under MCR 2.116(C)(10).
This appeal followed.
II. STANDARD OF REVIEW
Appellate courts review de novo a trial court’s grant of summary disposition. Innovation
Ventures v Liquid Mfg, 499 Mich 491, 506; 885 NW2d 861 (2016). The trial court granted
defendants summary disposition under MCR 2.116(C)(4), (7), (8), and (10).
Under MCR 2.116(C)(4), summary disposition is warranted when “[t]he court lacks
jurisdiction of the subject matter. See also Meisner Law Group PC v Weston Downs Condo
Ass’n, 321 Mich App 702, 714; 909 NW2d 890 (2017). For a motion under MCR 2.116(C)(7),
summary disposition is warranted where the claim is barred by a “statute of limitations.” In
Maiden v Rozwood, 461 Mich 109, 119-120; 597 NW2d 817 (1999), our Supreme Court
explained the process for reviewing a motion filed under MCR 2.116(C)(8):
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A motion under MCR 2.116(C)(8) tests the legal sufficiency of the
complaint. All well-pleaded factual allegations are accepted as true and construed
in a light most favorable to the nonmovant. Wade v Dep’t of Corrections, 439
Mich 158, 162; 483 NW2d 26 (1992). A motion under MCR 2.116(C)(8) may be
granted only where the claims alleged are “so clearly unenforceable as a matter of
law that no factual development could possibly justify recovery.” Id. at 163.
When deciding a motion brought under this section, a court considers only the
pleadings. MCR 2.116(G)(5).
For a motion under MCR 2.116(C)(10), the Maiden Court explained the review as follows:
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the
complaint. In evaluating a motion for summary disposition brought under this
subsection, a trial court considers affidavits, pleadings, depositions, admissions,
and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most
favorable to the party opposing the motion. Where the proffered evidence fails to
establish a genuine issue regarding any material fact, the moving party is entitled
to judgment as a matter of law. [Maiden, 461 Mich at 120.]
III. ANALYSIS
A. SUBJECT-MATTER JURISDICTION
The trial court ruled that it did not have subject matter jurisdiction over this case and
granted summary disposition to defendants under MCR 2.116(C)(4).
The circuit court is a court of general jurisdiction, MCL 600.151, and has “original
jurisdiction in all matters not prohibited by law . . . .” Const 1963, art 6, § 13. “Circuit court
jurisdiction over a particular subject matter is denied only by constitution or statute.” Campbell
v St John Hosp, 434 Mich 608, 614; 455 NW2d 695 (1990). “In construing such statutes or
constitutional provisions, retention of jurisdiction is presumed and any intent to divest the circuit
court of jurisdiction must be clearly and unambiguously stated.” Id.Neither defendants nor the trial court cites any statute or constitutional provision that
denies the circuit court subject matter jurisdiction over this case. Instead, the trial court ruled
that it need not consider plaintiff’s argument that the court had subject matter jurisdiction
because plaintiff gave the argument cursory treatment. But this is an improper basis for the trial
court to conclude that it did not have subject matter jurisdiction. Regardless of what the parties
argue or consent to, “[t]he court must make its own determination regarding the existence of a
statutory basis for jurisdiction.” In re Hatcher, 443 Mich 426, 433; 505 NW2d 834 (1993).
Indeed, “even sua sponte,” “all courts must . . . confirm that subject matter jurisdiction exists[.]”
Reed v Yackell, 473 Mich 520, 540; 703 NW2d 1 (2005). If a trial court must, even on its own,
confirm that it has subject matter jurisdiction, then the onus of proving subject matter jurisdiction
does not lie on the parties. Rather, the trial court “must make its own determination” about
whether it has subject matter jurisdiction. In re Hatcher, 443 Mich at 433 (emphasis added).
Turning to the merits of whether the trial court had subject matter jurisdiction in this case,
the answer is clear. “Generally, subject-matter jurisdiction is defined as a court’s power to hear
and determine a cause or matter. More specifically, subject-matter jurisdiction is the deciding
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body’s authority to try a case of the kind or character pending before it, regardless of the
particular facts of the case.” O’Connell v Dir of Elections, 316 Mich App 91, 100; 891 NW2d
240 (2016) (quotation marks and citation omitted). In short, “[t]he existence of subject matter
jurisdiction turns not on the particular facts of the matter before the court, but on its general legal
classification.” Winkler by Winkler v Marist Fathers of Detroit, Inc, 500 Mich 327, 341; 901
NW2d 566 (2017).
Here, plaintiff brought three claims: one for fraud, one for conversion, and one for unjust
enrichment. The circuit court, as a court of general jurisdiction, MCL 600.151, had authority to
hear each of these types of claims. See O’Connell, 316 Mich App at 100. And because the
circuit court was not barred by constitution or statute from hearing these claims, see Campbell,
434 Mich at 614, the trial court erred by concluding that it did not have subject matter
jurisdiction.
Both defendants argue that the trial court lacked subject matter jurisdiction because the
relevant events took place in the country of Jordan. But they do not explain what effect, if any,
this has on whether the trial court has subject matter jurisdiction. Again, they do not identify any
statutes or constitutional provisions that divest the circuit court of jurisdiction, see Campbell, 434
Mich at 614, nor do they explain why this matter is not of the “general legal classification” that
circuit courts have subject matter jurisdiction over, Winkler by Winkler, 500 Mich at 341.
Defendant Peter explicitly argues that the trial court lacked subject matter jurisdiction
based on forum non conveniens, while defendant Antone implicitly makes the same argument.
“ ‘Forum non conveniens’ is defined as the ‘discretionary power of court to decline jurisdiction
when convenience of parties and ends of justice would be better served if action were brought
and tried in another forum.’ ” Radeljak v Daimlerchrysler Corp, 475 Mich 598, 604; 719 NW2d
40 (2006), quoting Black’s Law Dictionary (6th ed). While it is true that “the ultimate inquiry is
where trial will best serve the convenience of the parties,” Cray v Gen Motors Corp, 389 Mich
382, 391; 207 NW2d 393 (1973) (quotation marks and citation omitted), there is also a
multi-factor test laid out in Radeljak, 475 Mich at 605-606, that courts are to consider. Neither
Peter nor Antone address the factors from Radeljak, and we deem their cursory treatment of the
issue to be a waiver of this argument. See Blazer Foods, Inc v Rest Properties, Inc, 259 Mich
App 241, 252; 673 NW2d 805 (2003) (“[P]laintiffs have waived the issue by giving it such
cursory treatment.”).1
1
While unrelated to subject matter jurisdiction, Antone argues on appeal that the trial court
properly dismissed this entire case because plaintiff failed to include Sam as a necessary party.
But Antone fails to explain why this warrants dismissal rather than allowing plaintiff to amend
his complaint, so his argument is unpersuasive.
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B. CONVERSION
The trial court ruled that plaintiff’s conversion claim was barred by the three-year statute
of limitations in MCL 600.5805(10).2 On appeal, plaintiff argues that this was error, and that the
six-year statute of limitations in MCL 600.5813 actually applied to his claim.
In Tillman v Great Lakes Truck Ctr, Inc, 277 Mich App 47; 742 NW2d 622 (2007), this
Court addressed whether the statute of limitations for a claim of conversion was three years or
six years. The Court recognized that the issue had been decided inconsistently over the years,
and ultimately concluded that the three-year statute of limitations applied. Id. at 48-49.3
Based on Tillman, the trial court correctly held that the three-year statute of limitations
applied to plaintiff’s conversion claim. Plaintiff does not contest that, if the three-year statute of
limitations applied, then his conversion claim was time-barred. Thus, the trial court properly
granted summary disposition to defendants under MCR 2.116(C)(7) for this claim.
C. FRAUD
The trial court ruled that plaintiff failed to sufficiently plead fraud, so defendants were
entitled to summary disposition under MCR 2.116(C)(8). On appeal, plaintiff contends that he
did, in fact, plead facts sufficient to support his claim for fraud.
In City of Novi v Robert Adell Children’s Funded Trust, 473 Mich 242, 254 n 8; 701
NW2d 144 (2005), our Supreme Court explained:
The elements of fraud are: (1) that the charged party made a material
representation; (2) that it was false; (3) that when he or she made it he or she
knew it was false, or made it recklessly, without any knowledge of its truth and as
a positive assertion; (4) that he or she made it with the intention that it should be
acted upon by the other party; (5) that the other party acted in reliance upon it;
and (6) that the other party thereby suffered injury.
In plaintiff’s complaint, he never alleged that either Peter or Antone “made a material
representation” to him. City of Novi, 473 Mich at 254 n 8. The complaint only references
representations made by Sam. While plaintiff alleged in his complaint—and continues to allege
on appeal—that defendants “conspired with their brother, Sam Ansara, making representations”
to plaintiff, he nonetheless failed to allege that defendants made a material representation. City
of Novi is clear that “the charged party” must make the material representation, and numerous
cases confirm this principle. See Hord v Environmental Research Institute of Mich, 463 Mich
2MCL 600.was amended effective June 12, 2018, and the language from subsection (10) is now
found in subsection (2). See MCL 600.5805, as amended by 2018 PA 183.
3
The cases cited by plaintiff on appeal to support that the six-year statute of limitations applies
to his conversion claim were all discussed by Tillman, including Thoma v Tracy Motor Sales,
Inc, 360 Mich 434; 104 NW2d 360 (1960), which the Tillman Court explained “did not actually
address the applicable limitations period at all.” Tillman, 277 Mich App at 49.
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399, 404; 617 NW2d 543 (2000); Scott v Harper Recreation, Inc, 444 Mich 441, 447 n 3; 506
NW2d 857 (1993); Clement-Rowe v Michigan Health Care Corp, 212 Mich App 503, 507; 538
NW2d 20 (1995).
Nonetheless, defendants could be liable for fraud, even if they did not make any direct
representations to plaintiff, if Sam was acting as their agent when he allegedly made false
representations to plaintiff. See, e.g., Unibar Maint Services, Inc v Saigh, 283 Mich App 609,
624; 769 NW2d 911 (2009) (holding that an employer could be liable for employee’s fraud when
the employee committed the fraud during the course of her employment and the employer was
aware of the fraud). But plaintiff cannot proceed on a vicarious-liability theory for fraud because
he failed to adequately plead such a theory in his complaint.
In Dutkiewicz v Bartkowiak, 372 Mich 386, 389; 126 NW2d 705 (1964), our Supreme
Court explained that “an action in fraud must definitely and issuably set forth the facts
complained of and relied upon for recovery. Otherwise . . . it gives defendant no fair opportunity
to defend.” And under MCR 2.112(B)(1), “[i]n allegations of fraud or mistake, the
circumstances constituting fraud and mistake must be stated with particularity.”
Plaintiff’s complaint makes broad allegations that defendants “conspired with” Sam, that
“Defendants were well aware as well as active and/or silent participants in the conspiracy,” and
that “Defendants, through . . . Sam . . . made certain material representations to the Plaintiff.”
But plaintiff does not explain what the “conspiracy” was, or how defendants were involved in it,
i.e., whether Sam was acting as defendants’ agent. Thus, we conclude that plaintiff did not plead
with particularity that Sam was acting as defendants’ agent and, consequently, plaintiff failed to
sufficiently plead a claim for fraud. See MCR 2.112(B)(1); Dutkiewicz, 372 Mich at 389.
Plaintiff did not argue at trial—nor does he argue on appeal—that he could plead his fraud claim
with sufficient particularity if permitted to amend his complaint, see Walters v Nadell, 481 Mich
377, 387-388; 751 NW2d 431 (2008) (explaining that an issue is waived on appeal if the
appellant fails to raise the issue before the trial court), so we affirm the trial court’s dismissal of
plaintiff’s fraud claim under MCR 2.116(C)(8).
D. UNJUST ENRICHMENT
The trial court ruled that plaintiff “failed to establish any of the . . . elements to sustain a
claim of unjust enrichment” or “to provide any factual support for his claims of unjust
enrichment,” so it granted summary disposition to defendants under MCR 2.116(C)(10). We
conclude that this was error.
“A claim of unjust enrichment requires the complaining party to establish (1) the receipt
of a benefit by the other party from the complaining party and (2) an inequity resulting to the
complaining party because of the retention of the benefit by the other party.” Karaus v Bank of
New York Mellon, 300 Mich App 9, 22-23; 831 NW2d 897 (2012).
Here, plaintiff alleged that Sam promised plaintiff that if plaintiff gave Sam money, Sam
would double plaintiff’s money. But, according to plaintiff, Sam never intended to give plaintiff
back any money, and instead taking plaintiff’s money was part of a bigger conspiracy between
Sam and defendants to defraud plaintiff. Plaintiff claims that he gave Sam the money, Sam split
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plaintiff’s money with defendants, and none of them have returned the money despite plaintiff’s
requests.
Viewing these facts in the light most favorable to plaintiff, he could have a claim for
unjust enrichment. According to plaintiff’s complaint, Sam defrauded plaintiff of over $200,000,
Sam split that money with defendants, and defendants have retained that money. If proven true,
this would establish a claim for unjust enrichment. See id.When the trial court dismissed plaintiff’s claim under MCR 2.116(C)(10), discovery had
not started, so there was no way to know whether plaintiff could establish a material question of
fact on any of his assertions in his complaint. We conclude that it was premature for the trial
court to rule that plaintiff “failed to provide any factual support for his claim of unjust
enrichment” when plaintiff had not yet had a chance to even discover any factual support for his
claim. “A motion under MCR 2.116(C)(10) is generally premature if discovery has not been
completed unless there is no fair likelihood that further discovery will yield support for the
nonmoving party’s position.” Liparoto Const, Inc v Gen Shale Brick, Inc, 284 Mich App 25, 33-
34; 772 NW2d 801 (2009). Here, it cannot be said that “there is no fair likelihood that discovery
will yield support for” plaintiff’s position because plaintiff has not had a chance to discover
whether defendants may have received some of plaintiff’s money from Sam that Sam allegedly
illegally took from plaintiff. Thus, we remand to give plaintiff the opportunity for discovery. If,
after discovery, plaintiff still cannot produce evidence to support his claim for unjust enrichment,
then summary disposition for defendants would be proper.
Both defendants contend that they did not mislead plaintiff and were innocent
beneficiaries of the money that Sam allegedly wrongfully took. But this ignores plaintiff’s
allegations that defendants were not innocent bystanders; plaintiff alleges that defendants were
aware of Sam’s efforts to defraud plaintiff of over $200,000, and then accepted the
illegally-obtained money from Sam. As discovery has not yet taken place, it is unclear whether
plaintiff will be able to produce any evidence to support those allegations.
Defendants also argue that unjust enrichment is not a claim available to plaintiff because
it is an equitable doctrine only available “where there is no express contract,” and plaintiff
alleged that he had an express contract with Sam. Defendants are correct that “a contract will be
implied only if there is no express contract covering the same subject matter.” Belle Isle Grill
Corp v City of Detroit, 256 Mich App 463, 478; 666 NW2d 271 (2003). But defendants ignore
that “the mere existence” of an express contract is “not sufficient to bar” a plaintiff’s claim if the
express contract was not between the plaintiff and the defendant. Morris Pumps v Centerline
Piping, Inc, 273 Mich App 187, 194; 729 NW2d 898 (2006). Like in Morris, because the
express contract at issue here was not between plaintiff and defendants, the existence of an
express contract does not bar plaintiff’s recovery. See id. at 194-195.
Affirmed in part, reversed in part, and remanded for further proceedings. We do not
retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
/s/ Colleen A. O’Brien
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