Equitable relief may be granted if a legal remedy is not available. Tkachik v Mandeville, 487 Mich 38, 45 (2010). A complete, ample, and certain remedy at law that is as effectual as equitable relief precludes a suit in equity. Id. When granting equitable relief, the court may fashion a remedy warranted by the circumstances. Three Lakes Ass’n v Kessler, 91 Mich App 371, 377-378 (1979). The remedy must be specific and enforceable, or it will not be granted. Id. at 378.
The court’s broad discretionary powers regarding equity are not to be used to enlarge a party’s statutory rights. Dumas v Helm, 15 Mich App 148, 152 (1968).
Generally, the circuit court has jurisdiction over actions in equity. MCL 600.601. However, district courts also have limited jurisdiction over certain actions in equity. MCL 600.8302. See Section 2.4 for more information on circuit court jurisdiction and Section 2.3 on district court jurisdiction.
“There is no right to a jury trial where the relief sought is solely equitable in nature.” Thomas v Steuernol, 185 Mich App 148, 155-156 (1990). However, MCR 2.509(D) permits equitable claims to be decided by a jury with the consent of the parties. McPeak v McPeak, 457 Mich 311, 315 (1998). Where a party includes a jury demand with his or her complaint and pays a jury demand fee, but the complaint contains equitable counts, “the filing of the jury demand, standing by itself, certainly is not conclusive evidence that the [party] ‘consented’ to a jury trial on [the] equitable claims[.]” Zurcher v Herveat, 238 Mich App 267, 302-303 (1999) (the complaint contained equitable and nonequitable claims, and the record indicated that plaintiff intended for the court to decide the equitable claims).
“[I]n cases involving both equitable and legal issues, juries may decide factual issues relating to a claim for money damages, while judges retain the authority to determine the facts as they relate to equitable remedies[.]” ECCO Ltd v Balimoy Mfg Co, 179 Mich App 748, 751 (1989). “[E]quity jurisdiction is appropriate for all actions based on ‘traditionally equitable’ doctrines[.]” Id. at 750. “However, in addition to the assertion of a traditionally equitable claim, equity jurisdiction also requires that a plaintiff seek traditionally equitable relief.” Id. (holding the trial court erred in not sending plaintiff’s action for promissory estoppel to the jury where money damages were the only relief requested). See Section 9.6(F) for more information on promissory estoppel.
“The unclean-hands doctrine is ‘a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitablenss or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the [opposing party].’” New Products Corp v Harbor Shores BHBT Land Dev, LLC, 331 Mich App 614, 627 (2020) (alteration in original), quoting Rose v Nat’l Auction Group, 466 Mich 453, 463 (2002). “Any willful act that transgresses equitable standards of conduct is sufficient to allow a court to deny a party equitable relief.” New Products Corp, 331 Mich App at 627. In Rose, the plaintiffs were attempting to sell a piece of property they owned using the defendant-auction company. Rose, 466 Mich at 456. In an effort to secure a higher bid, the plaintiffs agreed to allow the defendant to use a planted bidder (who had no intention of buying the property) to drive up the bid. Id. at 457-458. When the planted bidder failed to make a bid, and the property sold for much less than the plaintiff expected, the plaintiffs sued the defendant. Id. at 458-460. The Court concluded that the plaintiffs’ involvement in the planted bidder scheme precluded them from bringing suit against the defendant, citing the clean hands doctrine. Id. at 464.
“‘Estoppel by laches is the failure to do something which should be done under the circumstances or the failure to claim or enforce a right at a proper time.’” Wells Fargo Bank, NA v Null, 304 Mich App 508, 537 (2014), quoting Schmude Oil Co v Omar Operating Co, 184 Mich App 574, 583 (1990). “A party guilty of laches is estopped from asserting a right it could have and should have asserted earlier.” New Products Corp v Harbor Shores BHBT Land Dev, LLC, 331 Mich App 614, 627 (2020) (quotation marks and citation omitted). “The application of the doctrine of laches requires a passage of time combined with a change in condition which would make it inequitable to enforce the claim against the defendant. In determining whether a party is guilty of laches, each case must be determined on its own particular facts.” Sedger v Kinnco, Inc, 177 Mich App 69, 73 (1988) (internal citations omitted). “‘To successfully assert laches as an affirmative defense, a defendant must demonstrate prejudice occasioned by the delay.’” Wells Fargo Bank, NA, 304 Mich App at 538, quoting Schmude Oil Co, 184 Mich App at 583.
The statutes of limitations apply equally to all legal and equitable actions, and“[t]he equitable doctrine of laches shall also apply in actions where equitable relief is sought.” MCL 600.5815. “The doctrine of laches may bar a claim even where the action is brought within the applicable limitations period.” New Products Corp, 331 Mich App at 627. “The application of laches can shorten but never lengthen, the analogous statute of limitations.” Tenneco, Inc v Amerisure Mut Ins Co, 281 Mich App 429, 456-457 (2008).
“‘Estoppel arises where a party, by representations, admissions or silence, intentionally or negligently induces another party to believe facts, and the other party justifiably relies and acts on this belief, and will be prejudiced if the first party is permitted to deny the existences of the facts.’” Wigfall v Detroit, 322 Mich App 36, 43, 44 (2017) (holding that equitable estoppel did not apply where the plaintiff “relied on information provided by defendant through its law department that was meant to relate solely to informal claims against defendant,” and that the plaintiff could not rely on the defendant’s “interpretation or misinterpretation” of notice requirements “as a justification or excuse for his failure to act in conformity with [the notice] requirements”), quoting Casey v Auto Owners Ins Co, 273 Mich App 388, 399 (2006).
“[E]quitable estoppel is not a cause of action unto itself; it is available only as a defense.” Casey, 273 Mich App at 399 (affirming the trial court’s dismissal of the plaintiffs’ equitable estoppel claim where the plaintiffs attempted to assert it as a cause of action). Equitable estoppel is “a doctrine that may assist a party by precluding the opposing party from asserting or denying the existence of a particular fact.” New Products Corp v Harbor Shores BHBT Land Dev, LLC, 331 Mich App 614, 627-628 (2020) (quotation marks and citation omitted).
The doctrine of promissory estoppel means:
“‘A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.’” State Bank of Standish v Curry, 442 Mich 76, 83 (1993), quoting 1 Restatement Contracts, 2d, § 90, p 242.
The reliance must be reasonable, and it is only reasonable if it was based on an actual promise. State Bank, 442 Mich at 84. “To determine the existence and scope of a promise, [courts should] look to the words and actions of the transaction as well as the nature of the relationship between the parties and the circumstances surrounding their actions.” Id. at 86.
A contract must be both procedurally and substantively unconscionable for it to be unenforceable. Hubscher & Son, Inc v Storey, 228 Mich App 478, 481 (1998). “[T]here is a two-pronged test for determining whether a contract is unenforceable as unconscionable, which is stated as follows:
(1) What is the relative bargaining power of the parties, their relative economic strength, the alternative sources of supply, in a word, what are their options?;
(2) Is the challenged term substantively unreasonable?” Hubscher & Son, Inc, 228 Mich App at 481 (quotation marks and citations omitted).
In evaluating the unconscionability of a contract, “[r]easonableness is the primary consideration.” Hubscher & Son, Inc, 228 Mich App at 481.
See Section 9.4 for additional information on contract actions.
“The theory underlying quantum meruit recovery is that the law will imply a contract in order to prevent unjust enrichment when one party inequitably receives and retains a benefit from another.” Morris Pumps v Centerline Piping, Inc, 273 Mich App 187, 194 (2006). In order to prevail on a quantum meruit claim, a plaintiff must establish:
•that the defendant received a benefit from the plaintiff, and
•the defendant retained the benefit, which resulted in an inequity to the plaintiff. Morris Pumps, 273 Mich App at 195.
A quantum meruit claim is not appropriate where an express contract exists between two parties. Morris Pumps, 273 Mich App at 199.
“In a tort action, an injured party may seek damages for an injury caused by the breach of a legal duty.” Genesee Co Drain Comm’r v Genesee Co, 504 Mich 410, 419 (2019). “As in tort, the remedy for [a breach-of-contract action] may be compensatory damages.” Id. “Unjust enrichment, by contrast, doesn’t seek to compensate for an injury but to correct against one party’s retention of a benefit at another’s expense, [a]nd the correction, or remedy, is therefore not compensatory damages, but restitution.” Id. “Because unjust enrichment sounds in neither tort nor contract and seeks restitution rather than compensatory damages,” “the [Governmental Tort Liability Act, MCL 691.1401 et seq.,] does not bar [an unjust enrichment] claim.” Genesee Co Drain Comm’r, 504 Mich at 423-424.
While a quantum meruit claim is equitable in nature, it is not automatically a purely equitable claim that must be brought in circuit court where the relief sought is money damages in an amount less than $25,000. Meisner Law Group, PC v Weston Downs Condo Ass’n, 321 Mich App 702, 726-728 (2017). In Meisner, “because plaintiff sought only legal relief—money damages—the district court ‘ha[d] exclusive jurisdiction’ of plaintiff’s civil action involving contract and quasi-contract claims because the undisputed evidence show[ed] that ‘the amount in controversy [did] not exceed $25,000.00.’” Id. at 730, quoting MCL 600.8301. “Although plaintiff’s theory of recovery rest[ed] on equitable principals of unjust enrichment,” its “complaint [did] not sound primarily in equity or seek equitable relief,” and “the relief sought by a plaintiff determines its procedural rights.” The Meisner Law Group, PC, 321 Mich App at 726, 729.
The court, in equity, may grant complete relief to a party in the form of specific performance, including an award of damages. Reinink v Van Loozenoord, 370 Mich 121, 127 (1963). “The granting of specific performance lies within the discretion of the court and whether or not it should be granted depends upon the particular circumstances of each case.” Derosia v Austin, 115 Mich App 647, 652 (1982).
Ordinarily, specific performance will not be granted “unless the party seeking the decree has tendered full performance.” Derosia, 115 Mich App at 652. However, formal tender is not required “where the defendant by his words or acts has shown that it would not be accepted.” Frakes v Eghigian, 358 Mich 327, 333 (1960). In Frakes (a real property case), the Court concluded that tender of performance was unnecessary where the defendant intentionally failed to attend several scheduled meetings at which the parties were supposed to close on the property. Id.
“Rescission abrogates [a] contract completely.” Cushman v Avis, 28 Mich App 370, 372 (1970). Notably, “equitable relief by way of cancellation is not strictly a matter of right, but rather a remedy, the granting of which rests in the sound discretion of the court.” Sherman v Progressive Mich Ins Co (On Reconsideration), ___ Mich App ___, ___ (2024) (cleaned up). Indeed, “rescission, whether legal or equitable, is governed by equitable principles.” Van Dyke Spinal Rehab Ctr, PLLC v USA Underwriters, ___ Mich App ___, ___ (2024) (noting “courts at law have considerable discretion in granting rescission”) (cleaned up). “Because the legal underpinnings of equitable rescission and rescission at law are the same, logic dictates that the same rule apply in matters involving rescission at law.” Id. at ___. “Thus, like equitable rescission, rescission as a legal remedy is also not a matter of right, but rather is granted in the sound exercise of a trial judge’s discretion.” Id. at ___.
Questions about a trial court’s interpretation of an insurance contract and a trial court’s application of equitable principles are reviewed de novo. Sherman, ___ Mich App at ___. Accordingly, application of the equitable doctrine of rescission is also reviewed de novo. Id. at ___ (quotation marks and citation omitted). “But, the ultimate question of the appropriate remedy is reviewed for an abuse of discretion.” Id. at ___.
There is no all-embracing rule governing rescission; “[e]ach case must stand on its own facts.” Dolecki v Perry, 277 Mich 679, 682 (1936). A case-by-case approach must also be employed when determining whether rescission is equitable as to third parties; “‘an absolute approach would unduly hamper and constrain the proper functioning of such remedies.’” Farm Bureau Gen Ins Co v Ace American Ins Co, 337 Mich App 88, 99 (2021), quoting Bazzi v Sentinel Ins Co, 502 Mich 390, 411 (2018).
“There are two types of rescission: mutual and unilateral.” Bradley v Westfield Ins Co, ___ Mich App ___, ___ (2024). Because “a mutual rescission requires mutual intent,” “accepting consideration only binds the accepting party to an agreement if it has been made clear to the accepting party that, by doing so, an agreement is formed.” Id. at ___ (noting that “a meeting of the minds” is required for “a valid cancellation or accord and satisfaction of an outstanding undertaking”) (quotation marks and citation omitted). In Bradley, an insurer sought to rescind a no-fault auto policy that “only allowed unilateral rescission due to fraud or misrepresentation.” Id. at ___. The Bradley Court rejected the insurer’s argument that “a mutual rescission was implied by [the insured’s] acceptance of the check refunding her premiums” because “the letter that the refund check accompanied unambiguously conveyed to [the insured] that [the insurer] had unilaterally decided to rescind the policy and that there was nothing she could do about [it].” Id. at ___. “The letter informed [the insured] that there had been a unilateral rescission; it did not invite her to agree to a mutual rescission.” Id. at ___. Indeed, “acceptance of consideration is not an effective mutual rescission unless the receiving party is fully informed of the condition accompanying acceptance.” Id. at ___ (quotation marks and citation omitted). “There can be no severance of the condition from acceptance.” Id. at ___ (cleaned up). Accordingly, “mutual rescissions must be based on proof that the insurer informed the insured that cashing the check would constitute a mutual rescission by which the insured would forfeit any right to dispute the lawfulness of the rescission.” Id. at ___. Therefore, the Court concluded that “the rescission relied upon by defendant was not mutual and that the claimed basis for a unilateral rescission, i.e. fraud, cannot be shown.” Id. at ___ (holding that the innocent-third party doctrine did not apply “because there was no rescission”).
“Rescission should not be granted in cases where the result thus obtained would be unjust or inequitable.” Sherman, ___ Mich App at ___ (cleaned up). “Courts should ‘balance the equities’ to determine whether rescission is appropriate.” Id. at ___ (citation omitted). For instance, reformation is “the appropriate remedy when an insurance contract violates the law or public policy.” Id. at ___ (quotation marks and citation omitted). “Similarly, reformation is possible if a party can prove a mutual mistake of fact, or mistake on one side and fraud on the other, by clear and convincing evidence.” Id. at ___ (quotation marks and citation omitted). Reformation is also “available for contracts if the writing fails to express the intentions of the parties as the result of accident, inadvertence, mistake, fraud, or inequitable conduct, or both fraud and mistake, fraud or inequitable conduct being on one side and mistake on the other.” Id. at ___ (cleaned up). In contrast, “rescission is justified without regard to the intentional nature of the misrepresentation, as long as it is relied upon by the insurer.” Id. at ___ (quotation marks and citation omitted).
Rescission is an acceptable remedy when there has been a failure to perform a substantial part of the contract or one of its essential items, or where the parties would have never created the contract had they expected or contemplated the default that occurred. Adell Broadcasting Corp v Apex Media Sales, Inc, 269 Mich App 6, 13-14 (2005).
“A contract may be rescinded because of a mutual mistake of the parties[.]” Dingeman v Reffitt, 152 Mich App 350, 355 (1986). The determination of whether a party is “entitled to rescission [due to mutual mistake] involves a bifurcated inquiry: (1) was there a mistaken belief entertained by one or both of the parties to a contract? and (2) if so, what is the legal significance of the mistaken belief?” Id. “[R]escission is indicated when the mistaken belief relates to a basic assumption of the parties upon which the contract is made, and which materially affects the agreed performances of the parties.” Lenawee Co Bd of Health, 417 Mich at 29. However, “a party who has assumed the risk of loss in connection with [a] mistake” is not entitled to rescission. Id. at 30.
Fraud is a basis for unilateral rescission. See Ball v Sweeney, 354 Mich 616 (1958); see also Bradley, ___ Mich App at ___ (“Because there was no fraud, there was no unilateral right of rescission.”). “There are three types of misrepresentations which may entitled an insurer to rescind a policy: [A]ctionable fraud, also known as fraudulent misrepresentation; innocent misrepresentation; and silent fraud, also known as fraudulent concealment.” Sherman, ___ Mich App at ___ (quotation marks and citation omitted) (stating that “‘an insurer has a reasonable right to expect honesty in the application for insurance’”) (citation omitted).
“In order to justify rescission of [personal injury protection] coverage with respect to preprocurement misrepresentations, the insurer must be able to demonstrate common-law fraud under equitable principles.” Bradley, ___ Mich App at ___ (cleaned up). “Accordingly, the party asserting fraud must establish:
(1) the alleged fraudulent party made a material representation; (2) the representation was false; (3) the person making the representation knew it was false or acted recklessly in making the statement; (4) the person intended that the opposing party should act upon the representation; (5) the opposing party acted in reliance; and so (6) suffered injury.” Id. at ___ (cleaned up).
“A failure to provide information that is not requested does not constitute a misrepresentation, let alone fraud.” Id. at ___. In Bradley, the insurer failed to produce any evidence suggesting that the insured made a false representation where the insurer’s “application for insurance did not ask the applicant who lived with her and whether there were other drivers in the household.” Id. at ___ (noting that the insurance application did “not direct or ask the applicant to list the drivers in the household or even who lived in the household”).
“Because there [was] no evidence of a misrepresentation,” the insurer was “not entitled to rescind the contract on the basis of fraud.” Id. at ___.
“Fraud in the application for an insurance policy may allow the blameless contracting party to avoid its contractual obligations” through the equitable remedy of rescission, which “requires proof of a fraudulent misrepresentation that was material.” Mota-Peguero v Falls Lake Nat’l Ins Co, ___ Mich App ___, ___ (2024) (cleaned up). “Indeed, it is well settled that an insurer is entitled to rescind a policy ab initio on the basis of a material misrepresentation made in an application for no-fault insurance.” Sherman, ___ Mich App at ___ (quotation marks and citation omitted). “The generally accepted test for determining the materiality of a fact or matter as to which a representation is made to the insurer by an applicant for insurance is to be found in the answer to the question whether reasonably careful and intelligent underwriters would have regarded the fact or matter, communicated at the time of effecting the insurance, as substantially increasing the chances of loss insured against so as to bring about a rejection of the risk or the charging of an increased premium.” Mota-Peguero, ___ Mich App at ___ (quotation marks and citation omitted). “In other words, the proper materiality question is whether ‘the’ contract issued, at the specific premium rate agreed upon, would have been issued notwithstanding the misrepresented facts.” Id. at ___ (holding that the insured’s “failure to disclose that she used the vehicle to drive for Uber and Lyft was a material misrepresentation”) (cleaned up); see also Sherman, ___ Mich App at ___ (“A misrepresentation is material if the insurer would have rejected the risk or charged an increased premium and would not have issued the same contract had it been given the correct information.”).
“When addressing the intervening interests of parties other than the fraudulent insured,” “rescission does not function by automatic operation of the law.” Mota-Peguero, ___ Mich App at ___ (quotation marks and citation omitted). However, “just as rescission does not automatically apply to parties other than the insured, rescission is likewise not barred as to those parties.” Id. at ___. Instead, trial courts have an “obligation to balance the equities of rescission” when “faced with a direct claim by a provider[.]” Id. at ___. Accordingly, the trial court “erred when it automatically dismissed [intervening plaintiff’s] claim based on [the insured’s] material misrepresentations.” Id. at ___. “By automatically awarding rescission to preclude [intervening plaintiff’s] claim, the trial court failed to consider [intervening plaintiff’s] interests.” Id. at ___ (remanding for the trial court to determine whether, in its discretion, rescission is available as between defendant and intervening plaintiff).
“Rescission is justified in cases of innocent misrepresentation if a party relies upon the misstatement, because otherwise the party responsible for the misstatement would be unjustly enriched if he were not held accountable for his misrepresentation.”Sherman, ___ Mich at ___ (quotation marks and citation omitted). “The party alleging innocent misrepresentation is not required to prove that the party making the misrepresentation intended to deceive or that the other party knew the representation was false.” Id. at ___ (cleaned up). In Sherman, an insurer notified its insured that it was denying coverage and rescinding the policy ab initio because of misrepresentations in her application. Id. at ___. In an affidavit, the insurer’s litigation underwriting specialist alleged that the insurer relied on the insured’s misrepresentations and would have charged a 7.7% higher premium had the insured accurately disclosed the number of drivers and resident-relatives at the reported address, and a 75.5% increased premium had the insured disclosed her permanent address. Id. at ___. Because the insured did not dispute this reliance, there was “no genuine issue of material fact that [the insured] made an innocent misrepresentation, and that [the insurer] would have issued a different contract but for this misrepresentation.” Id. at ___. “The trial court, sitting in equity, should have next examined [the insurer’s] conduct related to the procurement of the policy.” Id. at ___ (addressing “whether the trial court properly ordered a reformation of the insurance contract”). Indeed, the insured “did not allege bad faith or wrongdoing by [the insurer] prior to the rescission,” and “there was no evidence that [the insurer] engaged in misconduct in the procurement of the policy.” Id. at ___ (“In these circumstances, Michigan jurisprudence has overwhelmingly held that courts should uphold the insurer’s rescission.”). “The trial court’s balance of the equities should have revealed misconduct by [the insured], but none by [the insurer].” Id. at ___ (“The trial court erred by failing to recognize this distinction.”). “[T]he trial court’s decision to reform, rather than rescind, the policy” compounded this error. Id. at ___ (noting that the insured failed to request reformation in her demand for relief). “By ordering the policy reformed, the trial court placed the financial burden of paying PIP benefits on [the insurer], notwithstanding the fact that [the insured] obtained those very same benefits by way of fraud.” Id. at ___. Because “innocent insurers should not bear the burden of an insured’s fraud,” “the trial court abused its discretion when it ordered reformation, rather than rescission.” Id. at ___.
“[R]egardless of the basis for seeking the remedy of rescission,” “trial courts are required to balance the equities between a defrauded insurer and an innocent third party before extending the mutual rescission of a no-fault insurance policy to an innocent third party.” Van Dyke Spinal Rehab Ctr, ___ Mich App at ___. In Van Dyke Spinal Rehab Ctr, a medical provider brought a direct action against an insurer that had rescinded its policy based on a material misrepresentation made by its insured in an application for no-fault insurance. Id. at ___ (observing that “not only was it permissible for the trial court in this case to engage in a balancing of the equities, it was required.”) Factors to consider when balancing the equities include “(1) the extent to which the insurer could have uncovered the subject matter of the fraud before the innocent third party was injured; (2) the relationship between the fraudulent insured and the innocent third party to determine if the third party had some knowledge of the fraud; (3) the nature of the innocent third party’s conduct, whether reckless or negligent, in the injury-causing event; (4) the availability of an alternate avenue for recovery if the insurance policy is not enforced; and (5) a determination of whether policy enforcement only serves to relieve the fraudulent insured of what would otherwise be the fraudulent insured’s personal liability to the innocent third party.” Id. at ___ (quotation marks and citation omitted).
Regarding the first factor, “had defendant exercised due diligence, the insured’s misrepresentations would have been discovered long before the accident occurred and the policy would have been rescinded before plaintiff provided any services to the insured.” Id. at ___ (noting “the right to rescind a contract can be waived by inexcusable delay” and “rescission must be claimed promptly”). Regarding the second factor, “there is no reason to believe that plaintiff was aware of [the insured’s] fraud until, after providing services for several months, defendant finally got around to rescinding the policy and denying plaintiff’s claims.” Id. at ___. Regarding the third factor, “not only was plaintiff not aware of [the insured’s] misrepresentation when they began providing services, plaintiff was not made aware of it when defendant actually rescinded the policy.” Id. at ___. Regarding the fourth factor, “plaintiff could recover its outstanding bills from either [the insured] or the Michigan Assigned Claims Facility.” Id. at ___. Regarding the fifth factor, “denying rescission in favor of plaintiff might prompt the insurer to timely attend to its own responsibilities”—“[h]ad defendant acted with reasonable promptness, plaintiff would have provided significantly less services or possibly even none at all.” Id. at ___. “In sum, . . . a balancing of the equities weighs heavily in favor of denying rescission,” and “the trial court correctly weighed the equities in favor of plaintiff.” Id. at ___.
There is a contradiction in the caselaw on the burden of proof for rescission based on fraud. See Mina v Gen Star Indemnity Co, 218 Mich App 678, 681-685 (1996), rev’d in part on other grounds 455 Mich 866 (1997).1 In recognizing this conflict, the Michigan Court of Appeals stated:
“[W]e are unable to say with any degree of certainty exactly what standard of proof courts should apply in fraud cases. The Supreme Court has alternately required fraud to be established by a preponderance of the evidence and by clear and convincing proof, with little consistency and no detailed analysis. While the most recent Supreme Court pronouncements regarding the question have stated that fraud must be proved by clear and convincing evidence, we think it unlikely that the Supreme Court would overrule a significant body of case law without at least mentioning that it was doing so.” Mina, 218 Mich App at 684-685.
Examples of cases that required fraud to be proven by a preponderance of the evidence include Hayes v Weitzel, 251 Mich 129, 130 (1930); Campbell v Great Lakes Ins Co, 228 Mich 636, 641 (1924); and Stein v Home-Owners Ins Co, 303 Mich App 382 (2013). Cases that indicate a clear and convincing burden of proof include Flynn v Korneffel, 451 Mich 186, 201 (1996); and Foodland Distrib v Al-Naimi, 220 Mich App 453, 459 (1996).
“When reviewing a grant of equitable relief, an appellate court will set aside a trial court’s factual findings only if they are clearly erroneous, but whether equitable relief is proper under those facts is a question of law that [is] . . . review[ed] de novo.” McDonald v Farm Bureau Ins Co, 480 Mich 191, 197 (2008).
1 For more information on the precedential value of an opinion with negative subsequent history, see our note.