Ayzertech, Inc., v Caliber Home Loans, Inc., C06, 2019-178774-CB

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

BUSINESS COURT

AYZERTECH, INC.,

a Michigan Corporation,

Plaintiff,

Case No. 2019-178774-CB

v Hon. Michael Warren

CALIBER HOME LOANS, INC.,

an Ohio Corporation,

Defendant.

______________________________________________________________________________

OPINION AND ORDER DENYING PLAINTIFF AYZERTECH, INC.’S

MOTION FOR SUMMARY DISPOSITION PURSUANT TO MCR 2.116(C)(10)

AND GRANTING DEFENDANT CALIBER HOME LOANS, INC.’S

MOTION FOR SUMMARY DISPOSITION PURSUANT TO MCR 2.116(C)(10)

At a session of said Court, held in the

County of Oakland, State of Michigan

April 28, 2021

PRESENT: HON. MICHAEL WARREN

______________________________________________________________________________

OPINION

Overview

The present cause of action arises out of a dispute over insurance proceeds from

an insurance claim after a fire occurred at insured property located at 32893 Check Drive

in Warren, Michigan (the “Property”). Property owner Benjamin Beslic and Ayzertech,

Inc. (the “Plaintiff”), a public insurance adjuster, executed an assignment, wherein Beslic

agreed that 10% of any insurance funds received from the insurance claim belonged to

the Plaintiff. The Plaintiff alleges that Caliber Home Loans, Inc. (the “Defendant”),

mortgagee of the Property and an additional insured of the insurance policy, wrongfully

released those funds to Beslic.

In its First Amended Complaint, the Plaintiff alleges claims of conversion pursuant

to MCL 600.2919a and quantum meruit/unjust enrichment.

Before the Court is the Plaintiff’s Motion for Summary Disposition pursuant to

MCR 2.116(C)(10) and the Defendant’s Motion for Summary Disposition pursuant to

MCR 2.116(C)(10).

Oral argument is dispensed as it would not assist the Court in its

decision-making process.

At stake is whether the Plaintiff’s claims for quantum meruit/unjust enrichment

should be dismissed when the Plaintiff did not respond to the Defendant’s well-

grounded argument that there is no issue of material fact that such relief could not be

granted? Since the Plaintiff’s failure to respond is deemed an abandonment of the

A trial court has discretion to hear and decide competing motions for summary disposition that involve

the same legal and factual issues at the same time. Zaremba Equip, Inv v Harco Nat’l Ins Co, 302 Mich App 7,

21 (2013).

MCR 2.119(E)(3) provides courts with discretion to dispense with or limit oral argument and to require

briefing. MCR 2.116(G)(1) specifically recognizes application of MCR 2.119(E)(3) to summary disposition

motions. Subrule (G)(1) additionally authorizes courts to issue orders establishing times for raising and

asserting arguments. This Court’s Scheduling Order clearly and unambiguously set the time for asserting

and raising arguments, and legal authorities to be in the briefing – not to be raised and argued for the first

time at oral argument. Therefore, both parties have been afforded due process as they each had notice of

the arguments and an opportunity to be heard by responding and replying in writing, and this Court has

considered the submissions to be fully apprised of the parties’ positions before ruling. Because due process

simply requires parties to have a meaningful opportunity to know and respond to the arguments and

submissions which has occurred here, the parties have received the process due.

argument, the answer is “yes” and the Defendant’s Motion for Summary Disposition

regarding quantum meruit/unjust enrichment is granted.

Also, at stake is whether the Plaintiff obtained a valid assignment from Beslic by

which Beslic agreed under the terms and conditions of his Mortgage that insurance

proceeds could not be used to pay for public adjuster fees? Because there is no genuine

issue of material fact that the answer is “no,” the Plaintiff’s Motion for Summary

Disposition pursuant to MCR 2.116(C)(10) is denied and the Defendant’s Motion for

Summary Disposition pursuant to MCR 2.116(C)(10) is granted.

Further at stake is whether assuming the assignment was valid (which it is not),

the Defendant has converted the insurance funds Beslic assigned to the Defendant?

Because there is no genuine issue of material fact that the Defendant was an additional

insured and mortgagee for the insured Property, the answer is “no,” and the Plaintiff’s

Motion for Summary Disposition pursuant to MCR 2.116(C)(10) is denied and the

Defendant’s Motion for Summary Disposition pursuant to MCR 2.116(C)(10) is granted.

The Stipulated Facts

The parties have stipulated to the following facts in support of their respective

Motions for Summary Disposition and agree that these are the only facts required for the

Court to rule on the Motions:

1. On or about July 19, 2019, Benjamin Beslic executed a note (the

“Note”) secured by a mortgage (the “Mortgage”) on the Property in return

for a loan (the “Loan”) of $213,750.00 (collectively, the Note and Mortgage

constitute the “Loan”). Caliber is named as the lender on the Mortgage.

Federal Home Loan Mortgage Corporation (“FHLMC”) is the underlying

investor on the Loan. A true and correct copy of the Mortgage is attached

hereto as “Exhibit A.”

2. Caliber services the Loan on behalf of FHLMC pursuant to the

FHLMC Single-Family Servicer Guide.

3. Under Section 8202.11 of the FHLMC Single-Family Servicer Guide,

servicers are prohibited from paying fees out of insurance loss proceeds to

any public adjuster or other third party retained by the borrower to assist

with the recovery of those proceeds unless agreed to by FHLMC in writing.

A true and correct copy of Section 8202.11 of the FHLMC Single-Family

Servicer Guide is attached hereto as “Exhibit B.”

4. The Mortgage requires that Beslic maintain hazard insurance on the

Property. (Ex. A, ¶ 5.) Further, the Mortgage requires that “[a]ll insurance

policies required by Lender and renewals of such policies shall be subject

to Lender’s right to disapprove such policies, shall include a standard

mortgage clause, and shall name Lender as mortgagee and/or as an

additional payee.” (Id.)

5. Further, the Mortgage requires that Beslic “give prompt notice” to

the lender in the event of loss. (Id.) The Mortgage also allows the lender to

make an insurance claim if Beslic failed to timely do so. (Id.) The Mortgage

also requires that “[u]nless Lender and Borrower otherwise agree in

writing, any insurance proceeds, whether or not the underlying insurance

was required by Lender, shall be applied to restoration and repair of the

Property, if the restoration or repair is economically feasible and Lender’s

security is not lessened.” (Id.) The Mortgage provides that in the event that

repairs are not economically feasible, or if the security would be lessened,

then “the insurance proceeds shall be applied to the sums secured by this

Security Instrument . . . with excess, if any, paid to Borrower.” (Id.)

6. In addition, the Mortgage provides that “[f]ees for public adjusters,

or other third parties, retained by Borrower shall not be paid out of the

insurance proceeds and shall be the sole obligation of Borrower.” (Id.)

7. On or about July 30, 2019, the Mortgage was recorded in the Macomb

County, Michigan Register of Deeds as documents number 9084029, liber

26098, page 517. Id.

8. Beslic obtained insurance on the Property through State Auto

Property and Casualty Insurance Company (“State Auto”). A true and

correct copy of the evidence of insurance through State Auto is attached

hereto as “Exhibit C.”

9. Caliber is named as an “additional interest” on Beslic’s insurance

policy through State Auto (the “Policy”). (Ex. C.)

10. In August 2019, the Property suffered damage in a fire. State Auto

approved a claim based on that fire (the “Insurance Claim”).

11. The insurance premiums on the State Auto policy were paid by

Caliber through an escrow account funded by Beslic’s monthly mortgage

payments.

12. On October 18, 2019, Ayzertech and Beslic executed a contract

identified as an assignment. A true and correct copy of the document

executed between Ayzertech and Beslic is attached hereto as “Exhibit D.”

As reflected in the attached Exhibit D, Ayzertech agreed provide services

as a public adjusting company. As part of that agreement between Beslic

and Ayzertech, Beslic agreed that 10% of any insurance funds received from

the Insurance Claim belonged to Ayzertech.

13. Plaintiff Ayzertech provided public adjuster services on behalf of

Beslic and Ayzertech negotiated with State Auto. Ultimately, State Auto

approved the Insurance Claim.

14. In October 2019, Caliber received a check in the amount of

$109,751.96, made payable to Ayzertech, Beslic and Caliber. At the time

Caliber received the $109,751.96 check, it was already indorsed by

Ayzertech and Beslic. The $109,751.96 check was deposited into a restricted

escrow account. A true and correct copy of the $109,751.96 check is attached

hereto as “Exhibit E.”

15. In February 2020, Caliber received another check related to the

Insurance Claim in the amount of $53,310.80, which was made payable to

Ayzertech, Beslic and Caliber. At the time Caliber received the $53,310.80

check, it was already indorsed by Ayzertech and Beslic. The $53,310.80

check was deposited into a restricted escrow account. A true and correct

copy of the $53,310.80 check is attached hereto as “Exhibit F.”

16. Defendant Caliber established and was the only signatory on the

restricted escrow account.

17. On December 3, 2019, Plaintiff Ayzertech demanded that Defendant

Caliber pay Plaintiff 10% of the assigned insurance benefits that were

deposited into the restricted escrow account to Plaintiff Ayzertech, but

Defendant Caliber did not tum over the funds.

18. Starting in October 2019, Beslic, through third party contractors,

made repairs to the Property. Based on the status of those repairs, Caliber

released portions of the Insurance Claim to Beslic for payments of his

contractors.

19. Caliber released $40,000 to Beslic on February 13, 2020, $16,000 on

February 21, 2020, and $51,365.86 on May 13, 2020.

20. In or about September 2020, the Beslic mortgage and promissory

note dated on or about July 19, 2019 was paid off by Beslic. Then, on or

about September 23, 2020, Caliber released the entire amount of remaining

insurance benefits to Beslic in the amount of $55,403.88. Exhibit “G.”

21. After Beslic received the insurance funds from Caliber, he sent a

check to Plaintiff Ayzertech in the amount of $16,306.28.

22. Plaintiff Ayzertech received the check for $16,306.28, but did not

negotiate, accept, or deposit the check in the amount of $16,306.28. After

Plaintiff made written demand that Defendant Caliber release 10% of the

insurance benefits held by Defendant Caliber and Caliber did not comply,

Ayzertech then filed the present complaint against Caliber, alleging

statutory conversion under MCL 600.2919a and unjust enrichment.

[Stipulated Facts.]

III

The Plaintiff’s Arguments for Summary Disposition

The Plaintiff seeks summary disposition pursuant to MCR 2.116(C)(10). The

Plaintiff argues that Beslic assigned 10% percent of the $163,062.76 insurance proceeds to

it and the Defendant’s wrongful release of $16,306.28 in insurance benefits to Beslic was

an act of statutory conversion in violation of MCL 600.2919a.

The Plaintiff relies upon Shah, MC, PC v State Farm Mutual Automobile Ins Company,

324 Mich App 182 (2018), which applied Roger Williams Ins Co v Carrington, 43 Mich 252

(1880), and additional Supreme Court precedent to hold that an anti-assignment

provision in a no-fault insurance policy to preclude an assignment of an accrued claim to

payment after the loss occurred violated public policy. The Shah Court found that

“enforcement of the anti-assignment clause in the instant case is unenforceable to prohibit

the assignment that occurred here – an assignment after the loss occurred of an accrued

claim to payment-because such a prohibition of assignment violates Michigan public

policy that is part of our common law as set forth by our Supreme Court. Roger Williams,

43 Mich at 254; Rory [v Continental Ins Co, 473 Mich 457,] 469-471 [(2005)].” Shah, 324 Mich

App at 200.

The Plaintiff seeks an award of treble damages for a total amount of $48,918.82

pursuant to MCL 600.2919a, plus costs and reasonable attorney fees in accordance with

the statute.

In its Motion for Summary Disposition pursuant to MCR 2.116(C)(10), the Plaintiff does not seek relief on

its claim for quantum meruit/unjust enrichment. As a result, any argument that the Plaintiff is entitled to

judgment on its claim for quantum meruit/unjust enrichment is deemed abandoned.

However, on page 2 of its Motion, the Plaintiff specifies a request for $65,224.00 in damages.

The Defendant’s Arguments for Summary Disposition

The Defendant also seeks summary disposition pursuant to MCR 2.116(C)(10). The

Defendant argues that the Plaintiff never received a valid assignment from Beslic because

the Mortgage explicitly prohibits insurance funds from being used for the payment of

public insurance adjusters. The Defendant argues that Shah, 324 Mich App 182, is

distinguishable because the language restricting the use of insurance proceeds to pay a

public adjuster is in Beslic’s Mortgage, not his insurance policy, and the Defendant is an

additional insured and a beneficiary of the insurance claim, not an insurer.

The Defendant further argues the Plaintiff’s claims for statutory conversion and

quantum meruit/unjust enrichment should be dismissed because the Defendant neither

converted the insurance funds nor has been unjustly enriched because the Defendant

received the funds with the Plaintiff’s consent and the Defendant has not retained the

funds.

The Defendant finally argues that the Plaintiff cannot sustain its claims because it

has not been damaged where it received the disputed funds from Beslic.

Standard of Review

MCR 2.116(C)(10)

A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual

support for a claim or defense. See, e.g., MCR 2.116(G)(3)(b); Quinto v Cross & Peters Co,

451 Mich 358, 362 (1996). Accordingly, “[i]n 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.” Maiden v Rozwood, 461 Mich at 109,

119-120 (1999); MCR 2.116(C)(10); MCR 2.116(G)(4); Quinto, 451 Mich at 358. The moving

party “must specifically identify the issues” as to which it “believes there is no genuine

issue” of material fact and support its position as provided in MCR 2.116. MCR

2.116(G)(4).

Under Michigan law, the moving party may satisfy its burden of production under

MCR 2.116(C)(10) by demonstrating to the court that the non-moving party’s evidence is

insufficient to establish an essential element of the nonmoving party’s claim. Quinto, 451

Mich at 361. If the moving party properly supports its motion, the burden “then shifts to

the opposing party to establish that a genuine issue of disputed fact exists.” Id. at 362. If

the moving party fails to properly support its motion for summary disposition, the

nonmoving party has no duty to respond and the trial court should deny the

motion. MCR 2.116(G)(4). See also Meyer v City of Center Line, 242 Mich App 560, 575

(2000) (concluding that the trial court erred when it granted an improperly supported

motion for summary disposition under MCR 2.116[C][10]).

Granting a motion for summary disposition under MCR 2.116(C)(10) is warranted

if the substantively admissible evidence shows that there is no genuine issue in respect

to any material fact, and the moving party is entitled to judgment as a matter of

law. Quinto, 451 Mich at 362-363.

The Defendant’s unchallenged argument regarding the Plaintiff’s claim for quantum

meruit/unjust enrichment is well supported

and any contrary argument is deemed abandoned

In its Motion for Summary Disposition pursuant to MCR 2.116(C)(10), the

Defendant seeks dismissal of the Plaintiff’s claims for statutory conversion and quantum

meruit/unjust enrichment. The Plaintiff did not file a response to the Defendant’s Motion

for Summary Disposition and has not challenged or addressed the Defendant’s argument

that the Plaintiff’s claim for quantum meruit/unjust enrichment fails as a matter of law.

Under MCR 2.116(G)(4), the party opposing a motion for summary disposition is

required to “set forth specific facts showing that there is a genuine issue for trial” and if

the party fails to do so, “judgment, if appropriate, shall be entered against him or her”

(emphasis added). “If the opposing party fails to present documentary evidence

establishing the existence of a material factual dispute, the motion is properly granted.”

Smith v Globe Life Ins Co, 460 Mich 446, 455; (1999) (internal quotation omitted).

On its face, the Defendant’s Motion with respect to the claim for quantum

meruit/unjust enrichment is persuasive and incorporated herein. With regard to any

contrary argument, “[t]rial Courts are not the research assistants of the litigants; the

parties have a duty to fully present legal arguments for its resolution of their dispute.”

Walters v Nadell, 481 Mich 377, 388 (2008). Because the moving party has failed to cite any

authority to support its argument, the argument is deemed abandoned. See, e.g., Mitcham

v City of Detroit, 355 Mich 182, 203 (1959); People v Odom, 327 Mich App 297, 311 (2019)

(“As a preliminary matter, defendant has failed to identify any authority that requires a

trial court to consider a motion for substitute counsel before it may consider any

subsequently filed motion by the attorney who was the subject of the motion for

substitution. Accordingly, defendant has abandoned this issue. See People v Martin, 271

Mich App 280, 315 (2006)”); Houghton v Keller, 256 Mich App 336, 339-340 (2003); MCR

2.119(A)(2) (“A motion or response to a motion that presents an issue of law must be

accompanied by a brief citing the authority on which it is based”). As such, the

Defendant’s Motion for Summary Disposition of the Plaintiff’s claim for quantum

meruit/unjust enrichment is granted.

VII

The Plaintiff did not obtain a valid assignment from Beslic because Beslic agreed

that insurance proceeds could not be used to pay the fees of public adjusters

“In interpreting a contract, it is a court’s obligation to determine the intent of the

parties by examining the language of the contract according to its plain and ordinary

meaning.” In re Smith Trust, 480 Mich 19, 24 (2008). “If the contractual language is

unambiguous, courts must interpret and enforce the contract as written, because an

unambiguous contract reflects the parties' intent as a matter of law.” Id.

“Under general contract law, rights can be assigned unless the assignment is

clearly restricted.” Burkhardt v Bailey, 260 Mich App 636, 652 (2004). An unambiguous

anti-assignment clause “must be enforced unless it violates the law or public policy.”

Jawad A Shah, MD, PC v State Farm Mut Automobile Ins Co, 324 Mich App 182, 198 (2018).

The parties agree that Beslic’s Mortgage requires that “[u]nless Lender and

Borrower otherwise agree in writing, any insurance proceeds . . . shall be applied to

restoration and repair of the Property . . . ” and “in the event that repairs are not

economically feasible, or if the security would be lessened, then ‘the insurance proceeds

shall be applied to the sums secured by this Security Instrument . . . with excess, if any,

paid to Borrower.’” [Stipulated Facts, ¶5]. The parties also agree that Beslic’s “Mortgage

provides that ‘Fees for public adjusters, or other third parties, retained by Borrower shall

not be paid out of the insurance proceeds and shall be the sole obligations of Borrower.’”

[Stipulated Facts, ¶6.]

The Plaintiff’s argument that the Defendant had a duty to surrender to the

Defendant 10% of the insurance benefits contravenes the terms of the Mortgage

restricting insurance proceeds from being used to pay public adjuster fees. Shah, 324 Mich

App 182 is not applicable in the instant matter and the Plaintiff has not identified

jurisprudence finding that such a provision violates public policy. Beslic’s attempted

assignment of insurance proceeds to the Plaintiff to pay for public adjusting fees is

invalid.

VIII

The Defendant cannot be held liable for statutory conversion

as a mortgagee and additional insured

The Defendant did not convert the insurance proceeds

Statutory conversion under MCL 600.2919a(1)(a), as amended in 2005, creates a

remedy against a person who “steal[s] or embezzl[es] property or convert[s] property to

the other person’s own use.” MCL 600.2919a. MCL 600.2919a states as follows:

(1) A person damaged as a result of either or both of the following may

recover 3 times the amount of actual damages sustained, plus costs and

reasonable attorney fees:

(a) Another person’s stealing or embezzling property or converting

property to the other person’s own use.

(b) Another person’s buying, receiving, possessing, concealing, or aiding in

the concealment of stolen, embezzled, or converted property when the

person buying, receiving, possessing, concealing, or aiding in the

concealment of stolen, embezzled, or converted property knew that the

property was stolen, embezzled, or converted.

(2) The remedy provided by this section is in addition to any other right or

remedy the person may have at law or otherwise.

[MCL 600.2919a.]

The statute does not define the term “conversion.” “When a statute does not define

a term, [Michigan courts] will construe the term according to its common and approved

usage.” Nelson v Grays, 209 Mich App 661, 664 (1995). “A legal term of art, however, must

be construed in accordance with its peculiar and appropriate meaning.” Brackett v Focus

Hope, Inc, 482 Mich 269, 279 (2008). Because the term “conversion” has acquired a peculiar

meaning under Michigan common law, the common law defines the term for both

common-law and statutory purposes. Victory Estates LLC v NPB Mortg LLC, unpublished

opinion per curiam of the Court of Appeals, issued November 20, 2012 (Docket No.

307457); p 2, quoting Id. (concluding that the common-law definition defines both

common-law and statutory conversion under Michigan law). See also Bronson Methodist

Hosp v Allstate Ins Co, 286 Mich App 219, 223 (2009) (“Because the role of the judiciary is

to interpret rather than to write law, courts lack authority to venture beyond a statute’s

unambiguous text. Undefined statutory terms are generally given their plain and

ordinary meanings.

Where words ‘have acquired a peculiar and appropriate meaning in

the law,” they should be construed according to that meaning’ [footnotes omitted]).

Common law conversion is defined as “any distinct act of dominion wrongfully exerted

over another’s personal property in denial or inconsistent with the rights therein.” Aroma

Wines & Equip, Inc v Columbian Distribution Servs, Inc, 497 Mich 337, 351-352 (2015),

quoting Nelson & Witt v Texas Co, 256 Mich 65, 70 (1931) (citation and quotation marks

omitted). See also Lawsuit Financial v Curry, 261 Mich App 579, 591 (2004) (citation

omitted). Statutory conversion requires an additional showing that the defendant

“employed the converted property for some purpose personal to the defendant’s

interests.” Aroma Wines & Equip, Inc, 497 Mich at 358-359. See also MCL 600.2919a.

“Money is treated as personal property, and an action may lie in conversion of

money provided that there is an obligation to keep intact or deliver the specific money in

question, and where such money can be identified.” Dunn v Bennett, 303 Mich App 767,

778 (2014) quoting Garras v Bekiares, 315 Mich 141, 149, (1946) (citation and internal

quotations omitted). “To support an action for conversion of money, the defendant ‘must

have obtained the money without the owner’s consent to the creation of a debtor creditor

relationship’ and ‘must have had an obligation to return the specific money entrusted to

his care.’” Lawsuit Financial, 261 Mich App at 591, quoting Head v Phillips Camper Sales &

Rental, Inc, 234 Mich App 94, 111-112 (1999). In addition, Michigan courts have

consistently recognized that “simply retaining money does not amount to statutory

conversion under the prior statute which consisted of “knowing buying, receiving, or

aiding in the concealment of any stolen, embezzled, or converted property.” See e.g.,

Lawsuit Financial, 261 Mich App at 592-593.

The Plaintiff’s argument that the Defendant took the insurance benefits and used

them for its own purpose is refuted by the parties’ stipulated facts that the Defendant

received checks endorsed by the Plaintiff and deposited those funds into a restricted

escrow account before releasing those funds to Beslic:

14. In October 2019, Caliber received a check in the amount of

$109,751.96, made payable to Ayzertech, Beslic and Caliber. At the time

Caliber received the $109,751.96 check, it was already indorsed by

Ayzertech and Beslic. The $109,751.96 check was deposited into a restricted

escrow account. A true and correct copy of the $109,751.96 check is attached

hereto as “Exhibit E.”

15. In February 2020, Caliber received another check related to the

Insurance Claim in the amount of $53,310.80, which was made payable to

Ayzertech, Beslic and Caliber. At the time Caliber received the $53,310.80

check, it was already indorsed by Ayzertech and Beslic. The $53,310.80

check was deposited into a restricted escrow account. A true and correct

copy of the $53,310.80 check is attached hereto as “Exhibit F.”

* * *

18. Starting in October 2019, Beslic, through third party contractors,

made repairs to the Property. Based on the status of those repairs, Caliber

released portions of the Insurance Claim to Beslic for payments of his

contractors.

19. Caliber released $40,000 to Beslic on February 13, 2020, $16,000 on

February 21, 2020, and $51,365.86 on May 13, 2020.

20. In or about September 2020, the Beslic mortgage and promissory

note dated on or about July 19, 2019 was paid off by Beslic. Then, on or

about September 23, 2020, Caliber released the entire amount of remaining

insurance benefits to Beslic in the amount of $55,403.88. Exhibit “G.”

[Stipulated Facts.]

The Plaintiff’s claim for statutory conversion fails as a matter of law because the

Defendant received the insurance proceeds with the Plaintiff’s consent. See e.g.,

Windrush, Inc v Vanpopering, unpublished per curiam opinion of the Court of Appeals,

issued September 10, 2015 (Docket No. 315958) (plaintiff failed to satisfy its burden of

showing that money was received or retained without consent); Lansing Ice & Fuel Co v

Smith, unpublished per curiam opinion of the Court of Appeals, issued April 11, 2017

(Docket No. 328648) (plaintiff could not establish that defendant converted money to

advance a claim under MCL 600.2919a where defendant obtained the funds with

plaintiff’s consent). Those same funds were then released to Beslic who sent a check to

the Plaintiff in the amount of $16,306.28, which the Plaintiff chose not to accept, negotiate

or deposit.

ORDER

Based on the foregoing Opinion, Plaintiff’s Motion for Summary Disposition

pursuant to MCR 2.116(C)(10) is DENIED and the Defendant’s Motion for Summary

Disposition pursuant to MCR 2.116(C)(10) is GRANTED.

This Order disposes of the last pending claim and closes the case.

/s/Michael Warren

__________________________________/

HON. MICHAEL WARREN

CIRCUIT COURT JUDGE

The Defendant’s argument that the Plaintiff cannot sustain its claim for statutory conversion because it

has not sustained damages is moot.