The undersigned certifies that this Brief in Support was served upon this Honorable Court and

the Special Personal Representative / GAL by email on August 26, 2022.

_____________________

Patrick Maizy (P79503)

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Supplemental Brief in Support of Claimant _______ Claim

Claimant _______ (hereinafter ‘Claimant’) restates and reincorporates Claimant’s

Brief in Support of Claim hereby submits this Supplemental Brief in Support of Claim.

Factual Background

Claimant has resided at ____________ since 2010, which is

when this home was deeded to the Decedent. Claimant’s understanding was that the purchase of

the home was part of a joint venture between she and Decedent, and as such, during this time,

Claimant has undertaken mortgage payments, utility payments, and remodeling expenses totaling

over $64,000 (see Exhibits 2 & 3). Claimant and decedent were engaged and had a child

together (see Exhibit 4 – Affidavit of Parentage), who also resides at _______________

At a minimum, Claimant and Decedent were unmarried cohabitants.

Procedural Posture

On December 9, 2021, a Petition for Probate and to Appoint a Personal Representative

was filed. On April 15, 2022, an Affidavit of Publication was issued. (see Exhibit 1). On May 2,

2022, a claim against the estate was made by Claimant ______ via email to ___________, personal representative. (see Exhibit 2). On August 10, 2022, in a hearing held before

this Honorable Court, ________________ indicated that she had yet to receive documentation

substantiating Claimant ________’s claims. On the same date, namely August 10, 2022,

Claimant , by and through her Attorney, submitted documentation substantiating

Claimant’s claims. (see Exhibit 3).

Applicable Law

i. Timeliness & Form

MCL 700.3803, in relevant part, emphasis added, sets forth that:

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(1) A claim against a decedent's estate that arose before the decedent's death,

including a claim of this state or a subdivision of this state, whether due or to

become due, absolute or contingent, liquidated or unliquidated, or based on

contract, tort, or another legal basis, if not barred earlier by another statute of

limitations or nonclaim statute, is barred against the estate, the personal

representative, the decedent's heirs and devisees, and nonprobate transferees of

the decedent unless presented within 1 of the following time limits:

(a) If notice is given in compliance with section 3801 or 7608, within 4

months after the date of the publication of notice to creditors, except

that a claim barred by a statute at the decedent's domicile before the

publication for claims in this state is also barred in this state.

MCL 700.3804, in relevant part, emphasis added, goes on to state that:

(1) A claimant must present a claim against a decedent's estate in either of the

following ways:

(a) By delivering or mailing a written statement to the personal

representative indicating the claim's basis, the claimant's name and

address, and the amount claimed.

According to Michigan Probate Litigation, (Douglas A. Mielock & David L. J. M.

Skidmore eds, ICLE 3d ed 2017), (last updated 08/19/2022), the claimant may serve on the

personal representative a written statement that states the basis for the claim, the claimant’s name

and address, and the amount claimed. [Id., citing MCL 700.3804(1)(a)]. Most bills, credit card

statements, and other invoices will satisfy these requirements. (Id.). Failure to specify the due

date, the nature of any contingency, or a description of any security is not fatal to the claim (Id.,

emphasis added).

In the case at bar, Claimant delivered to Personal Representative via emails sent on May

2, 2022 and August 10, 2022 (Exhibits 2 & 3) all of the necessary information to indicate the

claim’s basis, the claimant’s name, address, and amount claimed. Both of these communications

fall within the four-month period prescribed by statute. As such, Claimant’s claim satisfies both

form and timeliness requirements.

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ii. Restitution for Unmarried Cohabitants

The issue at bar is whether an unmarried cohabitant can obtain restitution for

contributions and improvements made to property. In the context of unmarried cohabitants,

courts have used restitution for decades as a means by which to reapportion the value of assets

that were created during and through the partnership that end up in the hands of only one partner.

133 Harv. L. Rev. 2124; see 77 Mich. L. Rev. 47, 48, 51–52 (1978), supra note 30, at 51;

McMahel v. Deaton, 61 N.E.3d 336, 345–46 (Ind. Ct. App. 2016); Levar v. Elkins, 604 P.2d 602,

603–04 (Alaska 1980); Neibert v. Perdomo, 54 N.E.3d 1046, 1053–54 (Ind. Ct. App. 2016);

Porter v. Zuromski, 6 A.3d 372, 376–79 (Md. Ct. Spec. App. 2010); Bonina v. Sheppard, 78

N.E.3d 128, 132 (Mass. App. Ct. 2017); Cates v. Swain, 215 So. 3d 492, 496–97 (Miss. 2013);

Harman v. Rogers, 510 A.2d 161, 165 (Vt. 1986).

Courts have traditionally focused on identifiable and substantial contributions to the

acquisition, preservation, or enhancement of a specific asset owned by the Defendant. See

Restatement (Third) of Restitution and Unjust Enrichment, § 28 reporter’s note, cmt. d, stating

that “[t]he prospects for restitution [for unmarried cohabitants] are most favorable where the

imbalance in the parties’ reciprocal contributions is manifest, and where the claimant has made

readily quantifiable contributions to some identifiable and subsisting asset in the hands of the

defendant. Plaintiffs can recover in restitution for value contributed to property “that the

[plaintiff] reasonably expects to retain or to acquire,” regardless of the nature of the relationship

between the parties. Id. at § 28.

The court in McMahel gave an overview of much of the existing case law regarding this

issue, and found in favor of Plaintiff’s claims for unjust enrichment and restitution, where

Plaintiff and Defendant lived in the subject-property and both made mortgage and utility

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payments, and contributed to maintenance of the home. McMahel at 347. The court discussed

Bright v. Kuehl, which addressed whether a party is entitled to relief based upon contributions

during cohabitation without subsequent marriage absent an express agreement by looking at prior

case law. 650 N.E.2d 311. In Glasgo v. Glasgo, a former wife sued her former husband for onehalf

of the assets accumulated during their period of cohabitation after their divorce and the trial

court awarded the former wife a share of the property. 410 N.E.2d 1325 (Ind.Ct.App.1980), reh'g

denied. The former husband argued on appeal that claims by nonmarried cohabitants were

against public policy in Indiana because common law marriages were prohibited, and this court

affirmed the trial court's decision and expressly stated that granting the petitioner relief was not

against the public policy of this state and that recovery for parties seeking relief “would be

based only upon legally viable … equitable grounds which the parties could establish

according to their own particular circumstances.” (Id. at 1331, emphases added). Finally, the

court in Bright notes other jurisdictions adopted this right to relief holding that unmarried

couples may raise equitable claims such as implied contract and unjust enrichment following the

termination of their relationships where one of the parties attempts to retain an unreasonable

amount of the property acquired through the efforts of both. Bright at 315, citing cases from

California, Connecticut, Minnesota, Nevada, North Carolina, Pennsylvania, and Wisconsin. The

court in Bright went on to hold that “[a]ny benefit, commonly the subject of pecuniary

compensation, which one, not intending it as a gift, confers upon another who accepts it, is an

adequate foundation for a legally implied or created promise to render back its value,” (Id.), and

that “[p]rinciples of equity prohibit unjust enrichment of a party who accepts the unrequested

benefits another provides despite having the opportunity to decline those benefits.” Id. at 316.

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In a subsequent case, a trial court held that Defendant had to pay Plaintiff under a theory

of unjust enrichment where assets were held in Defendant’s name alone, and said assets

appreciated during the period of cohabitation. Turner v. Freed, 792 N.E.2d 947 (Ind. Ct. App.

2003). On appeal, the court indicated that where the parties lived together in the home for a

period of ten years, and both parties contributed to the home financially, evidence of unjust

enrichment had been demonstrated. Id. at 949. Specifically, the court indicated that “if [Plaintiff]

were awarded no part of the value of the assets [Defendant] acquired in his name alone during

the cohabitation… [Defendant] would be unjustly enriched.” Id.

Courts in Michigan have ruled similarly. For example, in Carnes v. Sheldon, 109 Mich.

App. 204 (Mich. App. 1981), the Michigan Court of Appeals held that the issue of whether there

is a contract implied in law to pay for what is accepted is a question of fact, and is to be resolved

by consideration of all of the circumstances, including closeness of the parties and expressed

expectations of the parties. See also Roznowski v. Bozyk, 73 Mich. App. 405 (1977). This line of

cases addresses whether services rendered by Plaintiffs should be compensated absent an express

contract; it would stand to reason that instances of direct monetary contributions to mortgage

payments and improvements to property would be more likely to produce a finding in favor of

restitution via unjust enrichment. Finally, in Pfenninger v Pfenninger, No. 272711 (Mich. Ct.

App., December 11, 2007), where the value of Defendant’s home dearly doubled in value during

the six years the parties lived together while unmarried, the Michigan Court of Appeals held that

the house not Defendant’s separate asset because Plaintiff made both monetary and intangible

contributions to the improvement of the house during this period.

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Conclusion

Similar to the Plaintiffs in many of the cases cited above, the Claimant contributed

monetarily to the home. Her contributions were substantial and identifiable. She paid the

mortgage. She fixed the roof. She paved the driveway. She re-did the bathrooms. Granting her

relief is not against policy because the relief “would be based only upon legally viable …

equitable grounds” which she has established.

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