Opinion
No. 351317
01-14-2021
KICKHAM HANLEY PLLC, as Trustee for a Certified Class of Persons and All Others Similarly Situated, Plaintiff-Appellant, v. GEORGE W. KUHN DRAINAGE DISTRICT, Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court
LC No. 2019-172077-CZ Before: FORT HOOD, P.J., and CAVANAGH and TUKEL, JJ. PER CURIAM.
Plaintiff, assignee of the City of Oak Park and trustee for a certified class of persons defined in the final order approving a class settlement in Lower Court No. 15-149751-CZ, appeals as of right the trial court's opinion and order granting summary disposition in favor of defendant. We affirm.
I. BACKGROUND FACTS
Defendant is a drainage district, which is an independent corporate entity that has powers conferred upon it by law. Drainage districts are governed by drainage boards. Defendant maintains and operates the George W. Kuhn Drain (the drain), which operates in an area that includes Oak Park.
See MCL 280.5.
See MCL 280.464.
Oak Park has a combined sewer system that collects both sanitary sewage and stormwater. That sewer system flows to the system operated by defendant. Generally, defendant diverts all of the stormwater flow from Oak Park and the other communities within the operational area of the drain to two water treatment plants respectively operated by the Detroit Water and Sewerage Department and the Great Lakes Water Authority. All of the subject stormwater flow travels through Detroit's Dequindre Interceptor, and there the flow is measured by a meter. Accordingly, the water treatment plants charge defendant an annual flat rate to dispose of stormwater based on the measured flow, and defendant allocates that charge among the communities within the operational area of the drain.
In February 2005, defendant's drainage board tentatively established an apportionment of the costs of the drain for stormwater disposal for the communities within the operational area of the drain. As part of the apportionment, the drainage board made an allocation on the basis of an assumption that all water purchased from the Detroit Water and Sewerage Department would be returned as sanitary flow, and so only the difference between the purchased water and the "Master Meter Charges" would be considered stormwater flow. Thus, under the apportionment, two rates would be charged to the communities within the drain's operational area, one for the cost of sanitary sewage flow into the drain, and the other for stormwater flow, which would be apportioned among the communities on the basis of an engineering study that determined each community's contribution of stormwater.
In April 2005, the drainage board resolved to adopt the tentative apportionment of costs it established in February 2005. On the same day, the drainage board entered a Final Order of Apportionment that provided an apportionment of costs between the communities within the operational areas of the drain.
In February 2019, in Lower Court No. 2015-149951-CZ, the trial court entered a final judgment and order approving a class settlement between the plaintiffs, two persons acting as individuals and as representatives of a class of similarly situated persons (the class action plaintiffs), and the defendant, Oak Park. The instant trial court took specific notice of the assignment provisions of that settlement agreement according to which any claims Oak Park possessed against Oakland County or its agencies—including defendant—for storm water management services relating to overcharges for stormwater management services would be assigned to the class action plaintiffs "or for their benefit." Additionally, plaintiff was appointed trustee of a litigation trust to pursue the claims against defendant on behalf of the plaintiffs, and was also appointed counsel for the litigation trust.
These class action plaintiffs were legally represented by plaintiff.
The trial court also noted that the class action plaintiffs and other members of the class who did not ask to be excluded from the class would be deemed to have executed a release of all claims against Oak Park relating to the assessment and costs of water and sewer rates "from the beginning of time through the date" of the final judgment and a period of time thereafter. Subsequently, Oak Park executed an assignment of claims to plaintiff.
Plaintiff filed its complaint against defendant on the basis of the assignment of Oak Park's claims to plaintiff as a trustee for the class action plaintiffs. In its complaint, plaintiff alleged that defendant charged Oak Park approximately $3 million dollars per year for the disposal of stormwater. It further alleged that Oak Park "passe[d] on that cost to its sewer Customers by imposing stormwater charges in its sewer rates to recover the entire $3 million plus per year imposed upon the City by [defendant] on an annual basis." According to the complaint, the amount defendant charged Oak Park for stormwater disposal should have been the same amount defendant was charged by the water treatment plants for stormwater disposal.
Plaintiff alleged that defendant charged Oak Park "substantially more than the amount" charged by the water treatment plants for the disposal of Oak Park's stormwater since at least 2011. According to the complaint, defendant improperly reallocated the sanitary sewage disposal costs imposed by the water treatment plants to stormwater disposal costs, and as a result defendant overcharged Oak Park. Thus, plaintiff raised claims of breach of contract, assumpsit, and unjust enrichment against defendant. The trial court ultimately granted defendant's motion for summary disposition and dismissed plaintiff's claims.
II. ANALYSIS
Plaintiff argues that the trial court erred when it granted defendant's motion for summary disposition. We disagree.
A. STANDARD OF REVIEW
This Court reviews a trial court's decision on a motion for summary disposition de novo. Zaher v Miotke, 300 Mich App 132, 139; 832 NW2d 266 (2013). The trial court granted defendant's motion under MCR 2.116(C)(8). "A court may grant summary disposition under MCR 2.116(C)(8) if '[t]he opposing party has failed to state a claim on which relief can be granted.' A motion brought under subrule (C)(8) tests the legal sufficiency of the complaint solely on the basis of the pleadings." Dalley v Dykema Gossett, 287 Mich App 296, 304; 788 NW2d 679 (2010) (alteration in original), quoting Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004). "When considering such a motion, a trial court must accept all factual allegations as true, deciding the motion on the pleadings alone." El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019). "A motion under MCR 2.116(C)(8) may only be granted when a claim is so clearly unenforceable that no factual development could possibly justify recovery." Id.
"Generally, this Court reviews de novo '[t]he interpretation of statutes and court rules.' " Simcor Constr, Inc v Trupp, 322 Mich App 508, 513; 912 NW2d 216 (2018) (alteration in original), quoting Estes v Titus, 481 Mich 573, 578; 751 NW2d 493 (2008). "[T]he rules governing statutory interpretation apply with equal force to a municipal ordinance . . . ." Bonner v City of Brighton, 495 Mich 209, 222; 848 NW2d 380 (2014). The existence and interpretation of a contract are questions of law reviewed de novo." Kloian v Domino's Pizza LLC, 273 Mich App 449, 452; 733 NW2d 766 (2006). This Court reviews equity cases "de novo on the record on appeal." Tkachik v Mandeville, 487 Mich 38, 44-45; 790 NW2d 260 (2010). "Whether a claim for unjust enrichment can be maintained is a question of law that we review de novo." Karaus v Bank of New York Mellon, 300 Mich App 9, 22; 831 NW2d 897 (2012).
B. BREACH OF CONTRACT
Plaintiff first argues that the trial court erred when it ruled that plaintiff failed to state a breach-of-contract claim. We disagree.
"A party claiming a breach of contract 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." Dunn v Bennett, 303 Mich App 767, 774; 846 NW2d 75 (2013) (quotation marks and citation omitted). "The party seeking to enforce a contract bears the burden of proving that the contract exists." AFT Mich v Michigan, 497 Mich 197, 235; 866 NW2d 782 (2015). "Michigan courts will not lightly presume the existence of an enforceable contract because, regardless of the equities in a case, the courts cannot make a contract for the parties when none exists." Huntington Nat'l Bank v Daniel J Aronoff Living Trust, 305 Mich App 496, 508; 853 NW2d 481 (2014) (quotation marks and citation omitted). There is a "strong presumption that statutes do not create contractual rights." Studier v Mich Pub Sch Employees' Retirement Bd, 472 Mich 642, 661; 698 NW2d 350 (2005). Thus, "absent an adequate expression of an actual intent of the State to bind itself, courts should not construe laws declaring a scheme of public regulation as also creating private contracts to which the state is a party." Id. at 662 (quotation marks and citations omitted).
The elements required to create a valid contract are "(1) parties competent to contract, (2) a proper subject matter, (3) a legal consideration, (4) mutuality of agreement, and (5) mutuality of obligation." Thomas v Leja, 187 Mich App 418, 422; 468 NW2d 58 (1991). "In order for consideration to exist, there must be a bargained-for exchange—a benefit on one side, or a detriment suffered, or service done on the other." Bank of America, NA v First American Title Ins Co, 499 Mich 74, 101; 878 NW2d 816 (2016) (quotation marks and citation omitted). "Contracts necessarily contain promises: a contract may consist of a mutual exchange of promises, or the performance of a service in exchange for a promise." AFT, 497 Mich at 235-236 (citations omitted). " 'Before a contract can be completed, there must be an offer and acceptance. Unless an acceptance is unambiguous and in strict conformance with the offer, no contract is formed.' " Kloian, 273 Mich App at 452, quoting Pakideh v Franklin Commercial Mtg Group, Inc, 213 Mich App 636, 640; 540 NW2d 777 (1995). "A basic requirement of contract formation is that the parties mutually assent to be bound." Rood v Gen Dynamics Corp, 444 Mich 107, 118; 507 NW2d 591 (1993). In other words, "the parties must have a 'meeting of the minds' on all the essential elements of the agreement." Huntington, 305 Mich App at 508. Courts determine if there was a meeting of the minds by reviewing objective evidence such as "the expressed words of the parties and their visible acts." Id. (quotation marks and citation omitted).
Plaintiff alleged in its complaint that the April 2005 resolution of the drainage board and the Final Order of Apportionment created a contract between defendant and Oak Park, and that defendant breached that contract when it overcharged Oak Park for stormwater disposal. The trial court ruled that those documents did not satisfy the elements of contract formation because they did not contain "any offer or promises or promises made by either party to the other that require[d] acceptance . . . ."
In its brief on appeal, plaintiff does not explain how the April 2005 resolution and the Final Order of Apportionment satisfied the elements of contract formation, and instead argues that the April 2005 resolution was binding on defendant whether or not it was a contract. However, in its reply brief, plaintiff addressed for the first time whether the Final Order of Apportionment and the April 2005 resolution satisfied the elements of contract formation, arguing that the consideration between Oak Park and defendant consisted of defendant's promise to charge Oak Park "a particular allocated percentage of the total cost of stormwater disposal."
"Reply briefs must be confined to rebuttal, and a party may not raise new or additional arguments in its reply brief." Kinder Morgan Mich, LLC v City of Jackson, 277 Mich App 159, 174; 744 NW2d 184 (2007). Further, "[a] party may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, or give issues cursory treatment with little or no citation of supporting authority." Wolfe v Wayne-Westland Community Sch, 267 Mich App 130, 139; 703 NW2d 480 (2005) (quotation marks and citation omitted). "If a party fails to adequately brief a position, or support a claim with authority, it is abandoned." MOSES, Inc v SEMCOG, 270 Mich App 401, 417; 716 NW2d 278 (2006).
Plaintiff did not raise any challenges regarding the elements of contract formation in its brief on appeal, and may not do so in its reply brief. Given that plaintiff failed to adequately brief this argument, we deem it abandoned. And even if plaintiff had properly presented its arguments regarding consideration, plaintiff failed to address the other elements of contract formation therefore plaintiff would have otherwise failed to expose error on the part of the trial court.
Regardless, even if plaintiff had properly argued that the April 2005 resolution and the Final Order of Apportionment satisfied the elements of contract formation, a brief review of the relevant portions of the Drain Code reveals that such an argument would have been meritless. Plaintiff is the assignee of Oak Park, and Oak Park is a public corporation that benefits from the drain that is operated and maintained by defendant. Under MCL 280.468, the drainage board was required to apportion the costs for the drain on the basis of the benefits accrued to each benefiting public corporation, and under MCL 280.478(1) and MCL 280.478(2) the drainage board was required to make an apportionment of costs for any necessary expenses incurred in the operation and maintenance of the drain. As a benefiting public corporation, Oak Park had the opportunity to object to the drainage board's apportionment of costs. See MCL 280.469.
Plaintiff's complaint did not raise any claim that the drainage board failed to comply with the Drain Code when it entered the Final Order of Apportionment, MCL 280.460, and plaintiff explicitly abandoned any such challenge in its brief on appeal. Given the requirements set by the Drain Code, the drainage board was in no way engaged in bargaining with Oak Park or any of the other benefiting public corporations when it entered the Final Order of Apportionment pursuant to its statutory obligations. The drainage board made no offer to Oak Park, there was no bargained-for exchange, or meeting of the minds, between Oak Park and defendant before the Final Order of Apportionment was entered, and none was required. Therefore, plaintiff has failed to overcome the strong presumption that the Final Order of Apportionment did not create a contract. See Studier, 472 Mich at 661. And while the Drain Code authorizes a drainage board to enter into contracts with public corporations, MCL 280.471, plaintiff did not allege that Oak Park had a separate contract with defendant.
Plaintiff also briefly contends that municipal resolutions are enforceable by their beneficiaries, citing our Supreme Court's holding in Hardaway v Wayne Co, 494 Mich 423; 835 NW2d 336 (2013). In that decision, the Court held that this Court improperly applied the last antecedent rule when it interpreted a municipal resolution pertaining to the entitlement of retirement benefits, and reinstated the trial court's grant of summary disposition of the plaintiff's declaratory judgment claim in favor of the defendant. Id. at 425, 427-429. Given that Hardaway concerned a declaratory judgment claim disposed of by way of summary disposition, rather than a breach-of-contract claim premised on a municipal resolution, it is unclear why plaintiff relies on Hardaway.
C. ASSUMPSIT & UNJUST ENRICHMENT
Plaintiff next asserts that the trial court erred when it ruled that plaintiff failed to allege any damages in support of its assumpsit and unjust enrichment claims. We disagree.
The Michigan Supreme Court explained actions of assumpsit as follows:
"We understand the law to be well settled, that the action of assumpsit for money had and received is essentially an equitable action, founded upon all the equitable circumstances of the case between the parties, and if it appear, from the whole case, that the defendant has in his hands money which, according to the rules of equity and good conscience, belongs, or ought to be paid, to the plaintiff, he is entitled to recover. And that, as a general rule, where money has been received by a defendant under any state of facts which would in a court of equity entitle the plaintiff to a decree for the money, when that is the specific relief sought, the same state of facts will entitle him to recover the money in this action." [Trevor v Fuhrmann, 338 Mich 219, 223-224; 61 NW2d 49 (1953), quoting Moore v Mandlebaum, 8 Mich 433, 448 (1860).]
"Assumpsit may be upon an express contract or promise, or for nonperformance of an oral or simple written contract, or it may be a general assumpsit upon a promise or contract implied by law." Kristoffy v Iwanski, 255 Mich 25, 28; 237 NW 33 (1931). "The right to bring this action exists whenever a person, natural or artificial, has in his or its possession money which in equity and good conscience belongs to the plaintiff, and neither express promise nor privity between the parties is essential." Hoyt v Paw Paw Grape Juice Co, 158 Mich 619, 626; 123 NW 529 (1909). "The basis of a common-law action for money had and received is not only the loss occasioned to the plaintiff on account of the payment of the money, but the consequent enrichment of the defendant by reason of having received the same." Trevor, 338 Mich at 224-225 (quotation marks and citation omitted).
Unjust enrichment is "the equitable counterpart of a legal claim for breach of contract." AFT Mich v Michigan, 303 Mich App 651, 677; 846 NW2d 583 (2014). A party may raise a claim of unjust enrichment "only if there is no express contract covering the same subject matter." Local Emergency Fin Assistance Loan Bd v Blackwell, 299 Mich App 727, 734; 832 NW2d 401 (2013) (quotation marks and citation omitted). The complaining party must 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, 300 Mich App at 22-23. Unjust enrichment "describes the result or effect of a failure to make restitution of or for property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor." Id. at 23 (quotation marks and citation omitted).
In its complaint, plaintiff alleged that, even if there was no contract between Oak Park and defendant, defendant overcharged Oak Park for stormwater disposal by way of the Final Order of Apportionment. Plaintiff thus raised claims in assumpsit and unjust enrichment against defendant. The trial court granted summary disposition of those claims because it ruled that plaintiff "failed to show that Oak Park suffered any damages." At the outset, plaintiff contends that the trial court erred when it dismissed plaintiff's claims in assumpsit and unjust enrichment, and it notes that those claims are essentially indistinguishable. We agree with the latter proposition and so will consider plaintiff's arguments regarding its unjust enrichment and assumpsit claims together.
Following its recitation of why it believes that claims of unjust enrichment and assumpsit against defendant were proper if there was no contract between defendant and Oak Park, plaintiff does not directly address the trial court's ruling that plaintiff failed to show that Oak Park was damaged by the stormwater disposal overcharges. Instead, plaintiff contends that Oak Park was the only entity that had standing to bring these claims against defendant, because the class action plaintiffs (i.e., Oak Park's ratepayers) did not directly pay the assessed stormwater disposal costs to defendant. However, the trial court did not reach the issue of plaintiff's standing by virtue of the assignment it received from Oak Park, having disposed of the case on the ground that plaintiff failed to demonstrate that Oak Park was damaged by the stormwater disposal overcharges.
"Under general contract law, rights can be assigned unless the assignment is clearly restricted," and an "assignee stands in the position of the assignor, possessing the same rights and being subject to the same defenses." Burkhardt v Bailey, 260 Mich App 636, 653; 680 NW2d 453 (2004).
While the trial court did not explain the basis for its ruling, plaintiff alleged in its complaint that Oak Park "passe[d] on that cost to its sewer Customers by imposing stormwater charges in its sewer rates to recover the entire $3 million plus per year imposed upon the City by [defendant] on an annual basis." Plaintiff attached a copy of the final judgment of the class action lawsuit to its complaint, in which the trial court for that case noted that, per the settlement agreement between Oak Park and the class action plaintiffs, the class action plaintiffs were deemed to have executed a release of all claims against Oak Park relating to the assessment and costs of water and sewer rates "from the beginning of time through the date" of the final judgment, as well as a period of time for future claims. And plaintiff concedes in its reply brief that the class action plaintiffs released their claims against Oak Park.
Given the foregoing, we surmise that the trial court ruled that plaintiff failed to establish that Oak Park was harmed by the stormwater disposal overcharges because Oak Park directly passed on that cost to the class action plaintiffs, who in turn released any claims they had against Oak Park. Because the actual ratepayers of the alleged overcharge (i.e., the class action plaintiffs) released their claims against Oak Park, plaintiff cannot show that defendant either retained money that in "good conscience, belongs, or ought to be paid, to the plaintiff," Trevor, 338 Mich at 223 (quotation marks and citation omitted), or that Oak Park suffered an inequity, Karaus, 300 Mich App at 22-23, because the money at issue belonged to Oak Park's ratepayers as opposed to Oak Park itself.
Plaintiff argues that any ruling that Oak Park was not harmed by the stormwater disposal overcharges because it passed through the overcharges to the class action plaintiffs runs afoul of a general rejection of "pass-through" defenses in all jurisdictions where such a defense has been raised. In support of its argument, plaintiff relies on a miscellany of decisions from a number of different contexts.
The earliest decision upon which plaintiff relies, Southern Pacific Co v Darnell-Taenzer Lumber Co, 245 US 531, 533-535; 38 S Ct 186; 62 L Ed 451 (1918), arose from a judgment obtained against a number of railroad defendants (i.e., common carriers) after the Interstate Commerce Commission found that the rate they charged for transporting hardwood lumber was excessive, and where the United States Supreme Court held that the plaintiffs were permitted to collect a judgment against the defendants even if the plaintiffs may have passed on the excessive charge to their own customers. The Court explained that a common "carrier ought not to be allowed to retain his illegal profit, and the only one who can take it from him is the one that alone was in relation with him, and from whom the carrier took the sum," because "of the endlessness and futility of the effort to follow every transaction to its ultimate result." Id. Thus, that holding pertained to proceedings involving a decision by the Interstate Commerce Commission, and commercial transactions where it would be difficult to ascertain how the excessive rate affected the prices paid by customers of the affected businesses. Given that plaintiff readily alleged in its complaint that Oak Park passed the overcharges on to its ratepayers, and has not shown that there would be any particular complexity in determining how the overcharge directly affected the fees paid by Oak Park's ratepayers, plaintiff's reliance on Southern Pacific Co is inapt.
Plaintiff also relies on decisions with similar holdings that pertain to claims based on federal antitrust violations: Hanover Shoe, Inc v United Shoe Machinery Corp, 392 US 481, 488-489, 493-494; 88 S Ct 2224; 20 L Ed 2d 1231 (1968) (rejecting a "passing-on" defense while recognizing that a buyer who was charged an illegally high price for materials used for the buyer's business had established a prima facie case under federal antitrust law); Oakland Co v Detroit, 866 F2d 839, 844-846 (CA 6, 1989) (holding that the county plaintiffs would have standing to bring claims under federal antitrust and racketeering law and could demonstrate an injury even if they recouped the illegal overcharges by passing it on to their own customers). However, those decisions pertain to claims based on violations of specific federal statutes rather than claims in assumpsit or unjust enrichment. Because the rationale for their disavowal of a "pass-through" or "passing-on" defense is based on considerations directly related to the aforementioned federal statutes, those cases do not militate in favor of adopting those holdings in the wholly distinct context of claims in assumpsit or unjust enrichment. Moreover, plaintiff, by virtue of its representation of the class action plaintiffs, fully demonstrated that a class action claim could be brought against Oak Park by its ratepayers, even if that litigation ended with the class action plaintiffs agreeing to release their claims against Oak Park.
"Opinions of the lower federal courts and foreign jurisdictions are not binding but may be considered persuasive." People v Patton, 325 Mich App 425, 435 n 1; 925 NW2d 901 (2018).
Plaintiff also cites Northern Arizona Gas Serv, Inc v Petrolane Transp, Inc, 145 Ariz 467, 476; 702 P2d 696 (Ariz App, 1984), where the Arizona Court of Appeals held that the plaintiff's "waiver of its claim for lost profits did not constitute an admission that none resulted from [the defendant's] activities," because "it was based on the complexity of issues of proof—the very reason for the supreme court's rejection of the passing-on defense in Hanover Shoe." And the Arizona court also noted that the plaintiff was "the only party that can recover the overcharge from" the defendant. Id. Plaintiff has not shown that there is any complexity with issues of proof regarding the effect of the overcharges, and, as discussed above, Oak Park's rate-payers were entitled to recover the overcharges from Oak Park but they released those claims. Therefore, plaintiff's reliance on this decision is inapt.
For these reasons, plaintiff has failed to show that the trial court erred in concluding as a matter of law that Oak Park did not incur any damages in this matter.
Plaintiff also argues that the trial court erred when it granted defendant's motion for summary disposition because plaintiff's allegation that defendant charged Oak Park an unreasonable rate for stormwater disposal presented a question of fact. Again, we are not persuaded.
In its complaint, plaintiff supported its second claim in assumpsit and its claim of unjust enrichment by alleging that defendant's charge for stormwater disposal was unreasonable because it exceeded the costs set by the Final Order of Apportionment. The trial court did not specifically address that allegation in its ruling, having disposed of the case on the ground of the lack of damages suffered by Oak Park. Because we affirm the result below on that ground, we need not consider the question of reasonableness of the stormwater disposal charge.
Nonetheless, plaintiff fails to show that defendant was under some general duty of reasonableness in connection with its stormwater disposal charges. Plaintiff relies on Mapleview Estates, Inc v City of Brown City, 258 Mich App 412; 671 NW2d 572 (2003). The discussion of reasonableness in that decision was limited to whether a "tap-in fee" for connecting to a municipal water system was reasonable under the Revenue Bond Act of 1933, MCL 141.101 et seq., where a municipality is permitted to set the rates for services falling under that act provided that those rates are reasonable. Id. at 417-418. But plaintiff provides no argument or explanation regarding how the RBA might be applicable in this situation.
Plaintiff also cites two other decisions that do not show that defendant was required to charge a reasonable rate. See Trahey v Inkster, 311 Mich App 582, 594; 876 NW2d 582 (2015) (where the city defendant challenged the trial court's finding that its water and sewer rates were unreasonable under the defendant's own city charter, which required the defendant's city council to set "just and reasonable rates" for public utility services provided by the defendant); Plymouth v Detroit, 423 Mich 106, 111; 377 NW2d 689 (1985) (a breach of contract action where the municipal water contract between the parties required the defendant to set rates for the water that was reasonable in relation to the costs incurred by the defendant).
And plaintiff did not raise an independent claim in its complaint that defendant charged unreasonable rates; rather, its allegation that the rates were unreasonable merely supported a claim in assumpsit and a claim of unjust enrichment. Given that plaintiff has failed to cite legal authorities that establish defendant was required to charge a reasonable rate, or otherwise adequately brief how the trial court erred, plaintiff has abandoned this argument on appeal. See MOSES, Inc, 270 Mich App at, 417; Wolfe, 267 Mich App at 139.
Plaintiff also briefly contends that defendant asserts that Oak Park released its claims against defendant during the class action suit. There is no indication that defendant actually raised this argument in the trial court. Because the trial court never considered any such contention, we decline to consider it.
Affirmed.
/s/ Karen M. Fort Hood
/s/ Mark J. Cavanagh
/s/ Jonathan Tukel