Katelyn Zwiker v. Lake Superior State University

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

KATELYN ZWIKER, Individually and on Behalf of FOR PUBLICATION
All Others Similarly Situated, February 10, 2022
9:20 a.m.
Plaintiff-Appellant,

v No. 355128
Court of Claims
LAKE SUPERIOR STATE UNIVERSITY and LC No. 20-000070-MK
LAKE SUPERIOR STATE UNIVERSITY BOARD
OF TRUSTEES,

Defendants-Appellees.

KEVIN HORRIGAN,

Plaintiff-Appellant,

v No. 355377
Court of Claims
EASTERN MICHIGAN UNIVERSITY and LC No. 20-000075-MK
EASTERN MICHIGAN UNIVERSITY BOARD OF
TRUSTEES,

Defendants-Appellees.

JAEL DALKE,

Plaintiff-Appellant,

v No. 357275
Court of Claims
CENTRAL MICHIGAN UNIVERSITY and LC No. 20-000068-MK
CENTRAL MICHIGAN UNIVERSITY BOARD OF
TRUSTEES,

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 Defendants-Appellees.

Before: SWARTZLE, P.J., and K. F. KELLY and REDFORD, JJ.

K. F. KELLY, J.

These consolidated cases1 present the question whether Michigan’s constitutionally-
created institutions of higher education are liable to their students for reimbursements for tuition
and room and board as a result of the COVID-19 pandemic. In each case, the plaintiffs below
contend the defendant universities breached their agreements with their students by imposing upon
them remote learning environments—termed “emergency remote teaching” (“ERT”) by
plaintiffs—as opposed to traditional in-person classroom instruction, which plaintiffs contend was
inferior. The plaintiffs below also seek reimbursements from the defendant universities for the
period of time in which they did not remain on campus during the COVID-19 pandemic. In each
case, we conclude the trial court did not err in granting summary disposition in favor of the
defendant universities because the plaintiffs below failed to demonstrate that the defendant
universities breached any contractual agreement with them.2

In Docket No. 357275, plaintiff Jael Dalke (“Dalke”) appeals by right the trial court’s
opinion and order granting summary disposition under MCR 2.116(C)(10) in favor of defendants
Central Michigan University and Central Michigan University Board of Trustees (“Central
defendants”). In Docket No. 355128, plaintiff Katelyn Zwiker (“Zwiker”), individually and on
behalf of all others similarly situated, appeals by right the trial court’s opinion and order granting
summary disposition under MCR 2.116(C)(8) and MCR 2.116(C)(10) in favor of defendants Lake
Superior State University and Lake Superior State University Board of Trustees (“LSS
defendants”). And, in Docket No. 355377, plaintiff Kevin Horrigan (“Horrigan”) appeals by right
the trial court’s opinion and order granting summary disposition under MCR 2.116(C)(8) in favor
of defendants Eastern Michigan University and Eastern Michigan University Board of Trustees
(“Eastern defendants”).

Finding no errors warranting reversal, we affirm.

I. THE CONTRACTS

A. CENTRAL MICHIGAN UNIVERSITY

1
These cases were consolidated on the Court’s own motion to “advance the efficient
administration of the appellate process.” Dalke v Central Michigan Univ, unpublished order of
the Court of Appeals, entered December 14, 2021 (Docket Nos. 357275, 355128, 355377).
2
This Court recognizes the very difficult situation the COVID-19 pandemic presented for
Michigan’s students, families, faculty, and administrators. The result from our opinion today in
no way diminishes these very difficult challenges faced by all during these uncertain times.

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 Dalke registered for classes at Central Michigan University on December 27, 2019.
Concurrent with her registration, Dalke was charged $6,255 for “Tuition and/or Fees” and was
also charged a “Student Services Fee” of $255. The Financial Terms and Conditions associated
with her registration stated that “[b]y completing registration at Central Michigan University for
this semester, you agree to financial responsibility for all charges, including tuition and fees on
your student account.”

Dalke also signed a document providing that, in exchange for living in the on-campus
residence hall, she agreed to the terms in defendant’s housing contract. Under the housing contract,
defendants agreed to provide Dalke with the use of residence facilities and food services. The
contract stated that “times set for performance of this contract are subject to change because
of . . . circumstances beyond the university’s control that may affect the health or safety of students
or affect the educational function of the institution.” The housing contract did not terminate if a
student moved to a private home, and a student who broke the contract without prior approval
would remain liable for room and board. The contract, however, gave defendants the discretion
to refund room and board. Dalke was charged for housing and an unlimited meal plan.

B. LAKE SUPERIOR STATE UNIVERSITY

The LSS defendants’ rates for the Spring 2020 semester provided for a $6,000 flat “One
Rate” fee for students taking 12 to 17 credits. The fees included, among other things, an athletic
fee for access to all regular-season athletic events, program fees related to “laboratory courses and
equipment,” student activity fees for student government and student activities, and special course
fees to offset the costs of supplies, equipment, maintenance, and transportation for specified
courses. The LSS defendants allowed students to select from online, regional, or traditional in-
person instructional methods.

Zwiker agreed to the LSS defendants’ financial responsibility agreement, which stated that
Zwiker “understand[s] that when I register for any class at Lake Superior State University, or
receive any service from Lake Superior State University, I accept full responsibility to pay all
tuition, fees and other associated costs assessed at any time as a result of my registration and/or
receipt of services, notwithstanding any anticipated third-party resource. .. .” The agreement also
stated that it “supersedes all prior understandings, representations, negotiations and
correspondence between the student and Lake Superior State University, constitutes the entire
agreement between the parties with respect to the matters described, and shall not be modified”
subject to exceptions.

Zwiker also signed a residence hall and dining services contract. In doing so, she “agree[d]
to abide by all provisions of this contract as well as any rules, regulations, and procedures
governing University Housing as may be published and amended from time to time by the
University. .. .” The LSS defendants agreed to provide students in residences with “living space,
facilities, furnishings, and meals (as applicable) in accordance with this contract and University
policies.” In exchange, Zwiker agreed to pay “a housing fee in accordance with the terms of this
contract.” The contract separately stated that any unused meals would not transfer from week to
week, and no refunds would be issued for unused meals. Moving to private housing did not
terminate Zwiker’s financial obligations. Specifically, the housing resident handbook stated that
students were required to complete check-out procedures before leaving the residence halls. To

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move out before the end of the academic year, a student was required to “[f]ill out Intent to Leave
Form in the Campus Life and Housing Office” and required to remove all personal belongings out
of the room.

The agreement was subject to change for, among other reasons, “disorders which may
affect the health or safety of students or affect the educational function of the institution.” The
parties also agreed that, “[i]n the event that the University shall be prevented from completing
performance of any obligations hereunder by act of God or other occurrences whatsoever which
are beyond the control of the parties hereto, then the University shall be excused from any further
performance of obligations and undertakings hereunder, to the full extent allowed by law.”

C. EASTERN MICHIGAN UNIVERSITY

Horrigan signed a financial responsibility statement in November 2019, which stated, in
relevant part:

I understand that when I register for any class at Eastern Michigan University
(EMU) or receive any service from Eastern Michigan University I accept full
responsibility to pay all tuition, fees and other associated costs assessed as a result
of my registration and/or receipt of services.

Horrigan also agreed to defendants’ housing contract, which provided that it would not
terminate if the resident moved off campus. The housing contract also stated that if a resident
chose to move out of the housing without a release, the resident would remain financially
responsible. The Eastern defendants “reserve[d] the right to reassign or remove a resident from
university housing for reasons of health, safety, welfare, failure to remain actively enrolled, or if
the student poses a significant disruption to the on-campus housing community.” The housing
contract also stated that “[r]efunds are not given for missed or unused meals.”

II. COVID-19 PANDEMIC

On March 10, 2020, Governor Whitmer declared a statewide state of emergency related to
the COVID-19 pandemic. Executive Order No. 2020-04, which has since been rescinded, stated,
in relevant part:

1. A state of emergency is declared across the State of Michigan.

2. The Emergency Management and Homeland Security Division of the
Department of State Police must coordinate and maximize all state efforts that may
be activated to state service to assist local governments and officials and may call
upon all state departments to utilize available resources to assist.

3. The state of emergency is terminated when emergency conditions no
longer exist and appropriate programs have been implemented to recover from any
effects of the emergency conditions, consistent with the legal authorities upon
which this declaration is based and any limits on duration imposed by those
authorities.

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 Subsequently, on March 20, 2020, Governor Whitmer issued an executive order requiring
“all individuals currently living within the State of Michigan . . . to stay at home or at their place
of residence,” subject to exceptions to sustain or protect life. Executive Order No. 2020-21. The
order was necessary “[t]o suppress the spread of COVID-19, to prevent the state’s health care
system from being overwhelmed, to allow time for the production of critical test kits, ventilators,
and personal protective equipment, and to avoid needless deaths.” Id.

A. CENTRAL MICHIGAN UNIVERSITY

On March 11, 2020, Central Michigan University president, Bob Davies, stated classes
would be moved to an online environment, and “students should not return to campus following
spring break.” The Central defendants’ residence halls were closed to everyone but international
students and student athletes, and limited food service was provided.

The Central defendants subsequently extended online-only classes until April 6, 2020.
Residence halls were open for residents who needed housing, but the Central defendants
“continue[d] to recommend that students with permanent residences off campus remain there at
this time.” On March 19, 2020, the Central defendants e-mailed students, stating that students
with a housing contract could remain on campus until May 9, 2020, but students who chose to
move out would receive a credit.

On March 23, 2020, Davies stated that, in response to the Governor’s stay-home order,
residence halls and apartments would remain open for students; however, he stated that students
who were currently residing off campus should not return. On March 30, 2020, defendants stated
they “continue[d] to recommend that all students return to their permanent residence if possible.”
However, housing and dining services remained open for students who continued to reside on
campus. The deadline to withdraw from classes or choose to use a credit/no credit option for
grades was extended until the end of May 2020.

B. LAKE SUPERIOR STATE UNIVERSITY

In response to Governor Whitmer’s March 10, 2020 emergency declaration, the LSS
defendants suspended face-to-face instruction and moved classes to a virtual format. In a March
11, 2020 e-mail, the LSS defendants notified students that residence halls and dining services
would remain open. They also notified students that its Campus Life Office would communicate
with students about virtual organizations and events.

On March 20, 2020, Lake Superior State University president, Rod Hanley, stated that
faculty members had successfully transitioned to virtual teaching and that students would be
permitted to drop classes through the end of the semester, and emphasized that residence halls and
dining services remained open. On April 7, 2020, the LSS defendants reiterated in an e-mail that
residence halls and dining services remained open, but stated that, to maintain safety for students
still living on campus, they were deactivating swipe-card access to residence halls for those
students who were not then living on campus. The e-mail stated that the card’s deactivation was
reversible on request or in response to an appointment to remove belongings. And on April 8,
2020, Hanley requested that students planning to travel during the Easter holiday “abandon[]” such

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plans and “stay in place.” However, if a student insisted on leaving, he requested that they not
return to campus.

C. EASTERN MICHIGAN UNIVERSITY

On March 11, 2020, Donald Loppnow, Eastern Michigan University’s president, stated by
e-mail that face-to-face instruction was suspended and classes would be moved to a virtual, online
format. Residence halls and dining facilities would remain open, but Loppnow encouraged
students to return to their permanent places of residence “due to public health recommendations
for social distancing.” After Governor Whitmer issued the executive order requiring all
individuals to stay at home or in their place of residence, the Eastern defendants closed their
residence halls on March 31, 2020, and announced that housing and meal plan credits would be
issued effective March 31, 2020.

III. PROCEDURAL HISTORY

In each of the consolidated cases, Dalke, Zwiker, and Horrigan (collectively, “University
plaintiffs”) asserted causes of action based on breach of contract and unjust enrichment against the
Central defendants, LSS defendants, and Eastern defendants (collectively, “University
defendants”). The University plaintiffs each alleged they did not receive the full benefit of the
tuition they paid before the pandemic began as a result of the transition to online learning
environment, which they claim is of lesser value than in-person instruction. In each case, the
University plaintiffs alleged the University defendants breached the parties’ contracts, which
provided that students would pay tuition in exchange for live, in-person instruction. As a result of
the transition to online instruction in the Spring 2020 semester classes, the University plaintiffs
seek a reduction or refund in tuition.

The University plaintiffs also alleged they did not receive reimbursements for their unused
portions of room and board during the time they were in off-campus housing. According to the
University plaintiffs, the University defendants breached their housing contracts by not housing
the University plaintiffs for the entire semester or otherwise offering a refund for unused room and
board. Lastly, the University plaintiffs each alleged that the University defendants failed to
reimburse them for unused portions of student and other fees paid for services that were not
provided. In addition to the breach of contract claims, the University plaintiffs alleged that the
University defendants were unjustly enriched by retaining the tuition, room and board, and fees
described.

A. CENTRAL MICHIGAN UNIVERSITY

The Central defendants initially moved for summary disposition under MCR 2.116(C)(8).
They asserted a constitutional right to control the university’s affairs and claimed their academic
decisions were not subject to judicial review. Alternatively, the Central defendants argued the trial
court should dismiss Dalke’s claim for breach of the tuition contract because she failed to identify
a contractual provision under which defendants promised to provide the live, in-person instruction
that formed the basis of her claim. Similarly, Dalke had not sufficiently identified which fees she
had paid or what services defendants had agreed to provide. Moreover, Dalke could not establish
damages because she could not establish the value of the educational instruction she received.

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 With respect to the claim regarding room and board, the Central defendants claimed Dalke
failed to state a claim for breach of contract because she had not identified any terms or conditions
of the parties’ contract that had been breached. Additionally, Dalke voluntarily moved out of her
residence hall and accepted a refund in lieu of remaining in university housing. Finally, the Central
defendants argued that Dalke failed to state claims for unjust enrichment because her housing-
related claim concerned the same subject matter as her room and board contract, and she could not
establish that defendants obtained a windfall by retaining the fees it had been paid.

The trial court granted the Central defendants’ motion in part and denied it in part. The
trial court rejected the argument that the Michigan Constitution and federal caselaw prevented
Dalke from asserting claims for breach of contract and unjust enrichment. However, concerning
her breach of contract claims related to tuition, the trial court previously ordered Dalke to provide
all documents supporting her tuition-based claim for breach of contract. In response, she produced
marketing information and excerpts from the Central Michigan University registration portal and
course catalog. According to the trial court, none of the documents promised that, if Dalke paid
tuition, the Central defendants “would exclusively provide in-person instruction.” The trial court
also noted that Dalke failed to establish a breach or damages because the Central defendants
provided instruction, she completed her courses, and she received credit toward her graduation
requirements. Because she had not established the required elements of breach of contract, the
trial court granted summary disposition under MCR 2.116(C)(10) in favor of the Central
defendants on the breach-of-contract claim but denied summary disposition with respect to unjust
enrichment.

Addressing Dalke’s breach-of-contract claim based on room and board, the trial court
determined that she established that a housing contract existed. However, she had not established
that the Central defendants breached the contract because it provided that the times of performance
were subject to change on the basis of “circumstances beyond the university’s control that may
affect the health or safety of students . . . .” The trial court reasoned that the COVID-19 pandemic
was a circumstance beyond the Central defendants’ control that allowed the contract to be altered.
Additionally, while the Central defendants encouraged students to move out, the halls and dining
rooms remained open to students who could not. Thus, the trial court granted summary disposition
under MCR 2.116(C)(10) in favor of the Central defendants with respect to this breach-of-contract
claim. The trial court also granted summary disposition under MCR 2.116(C)(8) in favor of the
Central defendants with respect to Dalke’s unjust-enrichment claim because an express written
contract precluded the claim.

With respect to Dalke’s fee claim, the trial court granted summary disposition in favor of
the Central defendants, finding that she did not attach an alleged contract to the complaint, and
that she failed to identify the amount of fees each student paid, what services they were to receive
in return, or what services she did not receive for the second half of the semester. Dalke’s account
statement was not a contract because it provided no promises in exchange for the fees. However,
the trial court concluded that she had sufficiently pleaded an unjust-enrichment claim related to
fees to survive summary disposition.

The Central defendants subsequently moved for partial summary disposition under MCR
2.116(C)(10) regarding plaintiff’s unjust-enrichment claim related to tuition, explaining they did
not charge more for online classes than for in-person classes, and Dalke could not establish that

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they received a windfall from retaining plaintiff’s tuition. Dalke responded that emergency remote
teaching, which she characterizes as the “[t]he rapid transfer of some portion of a course to the
online environment to ensure continuity of instruction during unpredictable emergent situations
that threaten the ability to teach on-campus,” was not equivalent to regular online classes because
the value of online classes was higher. According to Dalke, this was the case because the Central
defendants had ample time to prepare traditional online course materials, in contrast with the short
amount of time in reaction to the pandemic. In support of her arguments, Dalke relied on a report
prepared by Ted Tatos, an economist and statistician, who opined that emergency remote teaching
was different from standard online learning, “which requires substantial preparation and involves
courses designed for online delivery.” Tatos concluded that emergency remote teaching was not
the equivalent of online instruction and opined that students did not receive the same educational
benefit from emergency remote teaching as they would have from in-person instruction or regular
online education.3

The trial court granted the Central defendants’ motion for partial summary disposition
under MCR 2.116(C)(10). It found that the documentary evidence supported the claim they did
not receive a windfall as a result of the transition to remote learning. The Central defendants
charged the same for in-person and online credit hours, and the parties did not dispute that students
who successfully completed courses were awarded the same credit toward graduation as they
would have without the pandemic.

In March 2021, the Central defendants moved for summary disposition under MCR
2.116(C)(10) on Dalke’s contractual and unjust-enrichment claims for her fees. The Central
defendants argued that the credit Dalke received to her student account and the money she received
under the Coronavirus Economic Stabilization (“CARES”) Act, 15 USC 9001 et seq., compensated
her for the amount of fees she had paid during the Spring 2020 semester. Additionally, with respect
to parking fees, Dalke’s parking permit remained active, and she was allowed to park on campus
the entire time. Regarding the student services fee, the Central defendants argued that the fee did
not fund any particular service. It funded a variety of functions, such as academic advising,
counseling, and student success coaching, which defendants provided for the entire semester.

Dalke responded that a genuine issue of material fact existed regarding whether the Central
defendants continued to provide services related to the parking fee by citing her complaint, in
which she alleged that the Central defendants had not continued providing a parking service. She

3
Although relied on below by Dalke, neither Zwiker nor Horrigan relied on or otherwise presented
Tatos’s findings to the trial court. Nevertheless, in their briefs to this Court, Zwiker and Horrigan
have presented Tatos’s findings as support for reversal of the trial court’s decisions. On motion
by the LSS defendants, this Court struck Tatos’s declaration and any arguments discussing it.
Zwiker v Lake Superior State Univ, unpublished order of the Court of Appeals, entered April 5,
2021 (Docket No. 355128). Additionally, because the declaration was not presented to the trial
court by Horrigan, we decline to consider it in connection with his as well. See Bonkowski v
Allstate Ins Co, 281 Mich App 154, 165; 761 NW2d 784 (2008) (“This Court’s review is limited
to the record of the trial court.”). Moreover, and regardless of whether the declaration was properly
preserved, we find Tatos’s findings unpersuasive in the context of these cases.

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also argued that “the Student Services Fee was paid with the understanding that benefits would
occur on-campus,” but the Central defendants had canceled all on-campus events. Dalke also
moved for leave to amend her complaint.

The trial court ultimately granted the Central defendants’ motion for summary disposition
under MCR 2.116(C)(10). Dalke failed to respond to the motion with evidence and had instead
cited her complaint, which was not a sufficient response. The trial court also determined that
Dalke’s proposed amended complaint would be futile.

B. LAKE SUPERIOR STATE UNIVERSITY

The LSS defendants moved for summary disposition under MCR 2.116(C)(8) and (10).
The LSS defendants argued that they had a constitutional right to craft their response to the
COVID-19 pandemic. They also argued that they did not breach the tuition contract because it did
not guarantee live, in-person instruction. Concerning Zwiker’s housing contract, the LSS
defendants claimed the contract’s force-majeure clause excused them from further performance
because of circumstances beyond their control. Moreover, Zwiker was provided housing for the
entire semester because students were free to remain on campus. According to the LSS defendants,
the contract provided that moving to private housing did not terminate residency and that students
were not eligible for prorated room and board if the student did not complete the check-out process,
which Zwiker had not done. The housing contract also stated that there was no refund for unused
meals. Finally, the LSS defendants argued that Zwiker’s unjust-enrichment claims failed as a
matter of law because the contracts expressly covered the subject matter of the claims.

Zwiker responded that she had established damages that were not speculative because she
did not receive the benefit of the live, in-person instruction she had paid for, and she would be able
to quantify her damages during discovery. She additionally argued that the LSS defendants’ claim
that fee-related services had been provided was a factual claim, and that students were not able to
make substantial use of the services. With respect to the force-majeure clause, Zwiker argued that
the clause applied equally to students and, because Zwiker’s performance was impossible, she was
excused from performing under the contract. She claimed her decision to leave campus was not
voluntary as a result of the LSS defendants’ strongly worded letters to students and deactivation
of card access to the residence halls.

The trial court granted the LSS defendants’ motion for summary disposition under MCR
2.116(C)(8) and (10), finding first that the tuition contract did not guarantee live, in-person
learning. According to the trial court, the unambiguous terms of the tuition contract rendered
Zwiker liable for paying tuition after she registered for classes and received instruction services.
The trial court concluded that Zwiker had not established that she had specifically selected
traditional campus instructional methods or that the class catalog was incorporated into the
contract.

The trial court also determined that the LSS defendants were entitled to summary
disposition on Zwiker’s claim for breach of contract related to fees because the tuition contract
assessed fees as the result of registration, not as the result of receiving services, and the contract
did not provide that a refund would be issued if the services were not utilized. The trial court held
that the LSS defendants established through documentary evidence that students were permitted

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to remain in student housing and receive meal services, and Zwiker did not establish that the LSS
defendants failed to provide housing and meals for the entire semester. While students were
encouraged to leave or not to return if they had already left, the LSS defendants did not prevent
students from returning or fail to make housing and meals available. Additionally, the housing
contract provided that a student’s move to a private home or other housing did not terminate the
residency or financial conditions of the housing contract and explicitly provided that there was no
refund for unused meals.

Lastly, the trial court dismissed Zwiker’s unjust-enrichment claims under MCR
2.116(C)(8). The trial court reasoned that the existence of the tuition and housing contracts
prevented her from proceeding on an unjust-enrichment theory.

C. EASTERN MICHIGAN UNIVERSITY

The Eastern defendants moved for summary disposition under MCR 2.116(C)(8). The
Eastern defendants argued that they had a constitutional right to craft their response to COVID-19
because responding to the pandemic by moving instruction to an online format constituted an
academic judgment. They also argued, similar to the other defendants, that they did not breach
the tuition contract because it did not guarantee live, in-person instruction. Under the Eastern
defendants’ agreement, Horrigan was required to pay all tuition, fees, and other associated costs
that occurred as a result of his registration, and his expectations did not alter the contract’s
language.

With respect to the housing contract, the Eastern defendants argued that the contractual
language explicitly contemplated that students might be asked to leave before the end of the term
and stated that the relationship was subject to change on the basis of conditions that affected the
health or safety of students. The contract also provided no refund for unused meals. Finally, the
Eastern defendants argued Horrigan’s unjust-enrichment claims failed as a matter of law because
the tuition and housing contracts expressly covered the subject matter of the claims.

Horrigan responded that the Eastern defendants’ arguments concerning breach of the
tuition contract were meritless because they had not demonstrated that any contractual language
applied to the parties’ dispute. Horrigan also argued that, if the Eastern defendants were entitled
to terminate the housing contract for public health reasons, he was entitled to a refund. Horrigan
clarified that the fees the Eastern defendants failed to provide services for were a general fee, a
technology fee, and a student center fee. When the Eastern defendants closed the majority of
campus buildings, Horrigan was unable to use the services with which the fees were associated.
Finally, Horrigan argued that he was entitled to argue unjust enrichment in the alternative because
the contract was ambiguous regarding mode of instruction. He denied that the Eastern defendants
benefited students after retaining the funds because course credits were not the only benefit of
university enrollment.

The trial court granted the Eastern defendants’ motion for summary disposition under MCR
2.116(C)(8), concluding that the plain language of the contracts precluded Horrigan’s claims. The
trial court concluded that under the tuition contract, Horrigan accepted responsibility to pay for all
services and pay fees as a result of registering or receiving services. The contract did not contain

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any language about the mode of instruction. Because the contract was not ambiguous and did not
promise live instruction, it did not require that Horrigan receive a specific mode of instruction.

The trial court also held that the Eastern defendants’ housing contract expressly reserved
the right to remove students from university housing for health and safety reasons and provided
that refunds would not be given for missed or unused meals. The language was not ambiguous
and did not contain qualifications. Accordingly, Horrigan was not entitled to a refund for meals
or housing. With respect to fees, the trial court explained that the tuition agreement governed both
tuition and fees, and Horrigan had agreed to pay all fees that resulted from registering or receiving
services. Horrigan admitted that he registered for classes; therefore, he had agreed to pay the fees.
As in the other cases, the trial court also concluded Horrigan’s claims for unjust enrichment failed
because there were express agreements between the parties covering the same subject matter.

These appeals followed.

IV. ANALYSIS

A. STANDARDS OF REVIEW

In the proceedings below, the trial courts granted defendants motions for summary
disposition under MCR 2.116(C)(8) and MCR 2.116(C)(10). “We review de novo a decision by
the Court of Claims on a motion for summary disposition . . . .” Brunswick Bowling & Billiards
Corp v Dep’t of Treasury, 267 Mich App 682, 684; 706 NW2d 30 (2005).

“A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint.” Dell v
Citizens Ins Co of America, 312 Mich App 734, 739; 880 NW2d 280 (2015). We accept all well-
pleaded factual allegations as true and we construe them in the light most favorable to the
nonmoving party. Id. “Conclusory statements, unsupported by factual allegations, are insufficient
to state a cause of action.” Churella v Pioneer State Mut Ins Co, 258 Mich App 260, 272; 671
NW2d 125 (2003). “A motion under MCR 2.116(C)(8) may be granted only where the claims
alleged are so clearly unenforceable as a matter of law that no factual development could possibly
justify recovery.” Dell, 312 Mich App at 739.

When reviewing a decision under MCR 2.116(C)(10), this Court considers the pleadings,
admissions, and other evidence submitted by the parties in the light most favorable to the
nonmoving party. Sallie v Fifth Third Bank, 297 Mich App 115, 117-118; 824 NW2d 238 (2012).
Summary disposition is proper if there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. MCR 2.116(C)(10); Latham v Barton Malow Co, 480
Mich. 105, 111; 746 NW2d 868 (2008).

We also review de novo the proper interpretation of a contractual provision. Reed v Reed,
265 Mich App 131, 141; 693 NW2d 825 (2005). “Whether a contract is ambiguous is a question
of law, while determining the meaning of ambiguous contract language becomes a question of
fact.” Bodnar v St John Providence, Inc, 327 Mich App 203, 220; 933 NW2d 363 (2019).

A decision by the trial court to deny a motion to amend a pleading is reviewed for an abuse
of discretion. Aguirre v Michigan, 315 Mich App 706, 713; 891 NW2d 516 (2016). “The
determination that a trial court abused its discretion involves far more than a difference in judicial

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opinion.” In re Kostin, 278 Mich App 47, 51; 748 NW2d 583 (2008). “Rather, an abuse of
discretion occurs only when the trial court’s decision is outside the range of reasonable and
principled outcomes.” Id.

B. TUITION, FEES, AND IN-PERSON INSTRUCTION

Zwiker and Horrigan argue that the term “services” in their respective tuition contracts are
ambiguous and, therefore, the trial court erred because there are genuine issues of material fact
and parol evidence is necessary to determine the parties’ intent.4 In each case, the tuition contracts
from Lake Superior State University and Eastern University stated that students “accept full
responsibility to pay all tuition, fees and other associated costs assessed at any time as a result of
[student’s] registration and/or receipt of services.”

This Court will enforce unambiguous contracts as written. Rory v Continental Ins Co, 473
Mich 457, 468; 703 NW2d 23 (2005). It is not this Court’s role to undermine the parties’ freedom
to contract by rewriting clear contractual language to comply with what the Court perceives as the
parties’ intent. Id. at 468-469. Rather, this Court construes contractual terms in context, according
to their commonly used meanings. Henderson v State Farm Fire & Cas Co, 460 Mich 348, 354;
596 NW2d 190 (1999). A contract is ambiguous when its provisions are capable of conflicting
interpretations. Farm Bureau Mut Ins Co of Mich v Nikkel, 460 Mich 558, 566; 596 NW2d 915
(1999). A contract is not ambiguous solely because the parties may interpret a term differently.
Id. at 567. Failure to define a word does not make a contract ambiguous. Henderson, 460 Mich
at 354.

With respect to the tuition contracts from Eastern Michigan University and Lake Superior
State University, the trial court determined the tuition contracts provided that, by registering for a
class, the student agreed to pay all tuition, fees, and associated costs. The trial court held that the
unambiguous terms of the tuition contracts rendered Zwiker and Horrigan liable for paying tuition
after registering for classes and receiving instruction services. Additionally, the tuition contracts
assessed fees as the result of registration, not as the result of receiving services.

Both tuition contracts state that financial responsibility is incurred at registration or receipt
of service. The word “or” is a disjunctive term used to express a choice between alternatives.
Campbell v Dep’t of Treasury, 331 Mich App 312, 320; 952 NW2d 568 (2020). We find no error
in the trial court’s conclusion that unambiguous terms of the tuition contract rendered students
liable for paying tuition once they registered for classes. Thus, whether or not the term “services”
is ambiguous is irrelevant because students’ financial responsibility began upon registration.

4
Plaintiffs failed to preserve the argument that parol evidence was necessary by failing to raise it
first in response to defendants’ dispositive motions. Peterman v Dep’t of Natural Resources, 446
Mich 177, 183; 521 NW2d 499 (1994). Nevertheless, we exercise our inherent power to address
unpreserved issues where, as here, the issue is a legal one for which all facts have been presented
and resolution is required to properly decide the case. See Autodie, LLC v Grand Rapids, 305
Mich App 423, 431; 852 NW2d 650 (2014).

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 Zwiker and Horrigan also argue that the trial court erred because it should have considered
parol evidence to determine the meaning of the contract because it was obviously incomplete when
the services to be provided were not defined within the contract. “[P]arol evidence of contract
negotiations or of prior or contemporaneous agreements that would contradict or vary the terms of
a written contract are not admissible to vary a contract that is clear and unambiguous.” UAW-GM
Human Resource Ctr v KSL Recreation Corp, 228 Mich App 486, 492; 579 NW2d 411 (1998)
(quotation marks and citation omitted). If the contract contains an integration clause, parol
evidence is only admissible (1) to prove that the clause was fraudulent, (2) to invalidate the entire
contract, or (3) if the contract is obviously incomplete on its face. Id. at 494-495. When a contract
contains an express integration or merger clause, it is conclusive evidence that the agreement is
the entire agreement, and parol evidence is not admissible. Hamade v Sunoco Inc (R & M), 271
Mich App 145, 169; 721 NW2d 233 (2006).

With respect to both Eastern Michigan University and Lake Superior State University, the
tuition contracts contained merger and integration clauses stating that contract constituted the
entire agreement between the parties. Zwiker and Horrigan do not claim the contracts were
fraudulent or do not otherwise seek to invalidate the tuition contracts. Thus, whether parol
evidence is proper in the face of the merger and integration clauses depends upon whether the
tuition contracts are obviously incomplete. We reject the suggestion that they are. Zwiker and
Horrigan agreed to pay “all tuition, fees and other associated costs assessed as a result of my
registration and/or receipt of services . . . .” There is no missing term and the agreement is not
incomplete. That the term “services” is undefined does not render the contracts incomplete.
Terrien v Zwit, 467 Mich 56, 76; 648 NW2d 602 (2002) (“[T]he fact that a contract does not define
a relevant term does not render the contract ambiguous.”).

In all cases consolidated on appeal, The University plaintiffs claim the University
defendants breached their agreements by failing to provide live, in-person instruction. The
University plaintiffs, however, have pointed to no contractual language in which the University
defendants promised such method of instruction. The University plaintiffs have the burden to
show that a contract exists in order for the contract to be enforced, because “the court cannot make
a contract for the parties when none exists.” Kamalnath v Mercy Mem Hosp Corp, 194 Mich App
543, 549; 487 NW2d 499 (1992) (quotation marks and citations omitted). “A party asserting a
breach of contract must establish by a preponderance of the evidence that (1) there was a contract
(2) which the other party breached (3) thereby resulting in damages to the party claiming breach.”
Miller-Davis Co v Ahrens Constr, Inc, 495 Mich 161, 178; 848 NW2d 95 (2014).

To the extent the University plaintiffs claim the trial court erred because it failed to
recognize their noncontractual expectation to live, in-person instruction, such a claim fails as a
matter of law. A party’s expectations do not supersede the language of an unambiguous contract.
See Wilkie v Auto-Owners Ins Co, 469 Mich 41, 60; 664 NW2d 776 (2003) (rejecting rule of
reasonable expectation related to insurance contracts). “[A] contract requires mutual assent or a
meeting of the minds on all the essential terms.” Kloian v Domino’s Pizza, LLC, 273 Mich App
449, 453; 733 NW2d 766 (2006). A court considers the parties’ express words and visible acts,
and not the parties’ subjective states of mind, to determine whether there was mutual assent to a
contract. Id. at 454. “Where mutual assent does not exist, a contract does not exist.” Quality Prod
& Concepts Co v Nagel Precision, Inc, 469 Mich 362, 372-373; 666 NW2d 251 (2003).

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 Moreover, in none of the cases below did the University plaintiffs provide the trial court
with any contractual language in which the University defendants promised live, in-person
instruction. Most pertinently, with respect to the Central defendants, the trial court granted their
motion for summary disposition because, in response to the trial court’s order that Dalke produce
the contractual language upon which she based her claim, Dalke provided screenshots and excerpts
from the Central defendants’ registration portal and course catalog, as well as marketing
information. None of the documents promised that if Dalke paid tuition, the Central defendants
“would exclusively provide in-person instruction.”

Relatedly, Zwiker and Horrigan claim the trial court below granted summary disposition
prematurely and further discovery is needed in order to determine the meaning of the contract.
Summary disposition is premature before discovery is complete when further discovery “stands a
fair chance of uncovering factual support for the opposing party’s position.” Marilyn Froling
Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 292; 769 NW2d 234
(2009). As already discussed above, however, we find no error in the trial courts’ conclusions
below that the financial agreements between the parties were unambiguous and did not promise
live, in-person instruction. Thus, further factual development in discovery does not stand a fair
chance of uncovering additional support for Zwiker and Horrigan’s arguments.

Lastly, Horrigan contends that the tuition contract between him and the Eastern defendants
violates public policy because it provides for false advertising. Contracts that “tend to be injurious
to the public or against the public good. .. are illegal and void[.]” Mahoney v Lincoln Brick Co,
304 Mich 694, 706; 8 NW2d 883 (1943). We reject the notion that the Eastern defendants’ tuition
contract violates public policy. The Eastern defendants are part of a constitutionally-created
university and accredited institution of higher education that, like every other individual and
business, had to adapt in the face of a global pandemic. Despite the challenges, the Eastern
defendants successfully offered their students instruction in a manner that was safe to the students,
faculty, and staff. The fact that Horrigan perceives the contract, in hind sight, to be unfair, does
not render the contract as against public policy. See DeFrain v State Farm Mut Auto Ins Co, 491
Mich 359, 372-373; 817 NW2d 504 (2012). Horrigan paid for tuition and received the
corresponding credits. There is nothing so injurious to the public about this arrangement to cause
the Court to afford relief under this theory.

C. ROOM AND BOARD

In their appeals to this Court, the University plaintiffs contend the trial court erred when it
granted summary disposition in favor of the University defendants with respect to their claims for
breach of contract for room and board because the purpose of the contract was frustrated by the
COVID-19 pandemic. The University plaintiffs claim the pandemic was not reasonably
foreseeable and prevented the parties from fulfilling their obligations under the housing contracts.
The University plaintiffs failed to raise this issue in the trial court below and have, therefore, failed
to preserve it for appeal. Peterman, 446 Mich at 183. Nevertheless, as with the argument
concerning parol evidence, we will review the issue because it presents a question of law and a
resolution is required to properly decide the case. Autodie, 305 Mich App at 431.

A contractual frustration of purpose exists when “a change in circumstances makes one
party’s performance virtually worthless to the other, frustrating his purpose in making the

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contract,” despite the fact that nothing impedes the party from performing the contract. Liggett
Restaurant Group, Inc v Pontiac, 260 Mich App 127, 133-134; 676 NW2d 633 (2003) (quotation
marks and citation omitted). For a frustration of purpose to exist:

(1) the contract must be at least partially executory; (2) the frustrated party’s
purpose in making the contract must have been known to both parties when the
contract was made; [and] (3) this purpose must have been basically frustrated by an
event not reasonably foreseeable at the time the contract was made, the occurrence
of which has not been due to the fault of the frustrated party and the risk of which
was not assumed by him. [Id. at 134-135.]

With respect to Eastern Michigan University, in the parties’ housing contract, the Eastern
defendants “reserve[d] the right to reassign or remove a resident from university housing for
reasons of health, safety, welfare, failure to remain actively enrolled, or if the student poses a
significant disruption to the on-campus housing community.” The housing contract also stated
that “[r]efunds are not given for missed or unused meals.” Likewise, with respect to Central
Michigan University, the housing contract specifically stated that “times set for performance of
this contract are subject to change because of. .. circumstances beyond the university’s control that
may affect the health or safety of students or affect the educational function of the institution.”
And, with respect to Lake Superior State University, the contract did contain a force-majeure
clause, in which the parties agreed defendants’ performance would be excused for “act of nature”
or an “act of God” beyond the control of the parties.

In other words, these contracts expressly contemplated circumstances under which it is
necessary to remove students from housing for reasons of health, safety, and welfare. Horrigan
cannot establish the parties failed to contemplate an outbreak of illness that might discontinue
access to food and housing. Nor can he establish that the possibility that he might be removed
from university housing and miss meals because of a pandemic was not reasonably foreseeable
when the parties’ contract expressly provided that students might be removed from housing for
health and safety reasons.

Zwiker also contends the trial court erred when it granted summary disposition in favor of
the LSS defendants because they breached the housing agreement by preventing her from returning
to her residence. Aside from the allegation, however, Zwiker provides no documentary proof and,
for their part, the LSS defendants submitted documentary evidence showing that while they
encouraged students to shelter in place if off campus, the residence halls remained open. And
while the LSS defendants did deactivate the card access for students who were not actively on
campus, the deactivation could be reversed by request. In short, Zwiker failed to show that the
LSS defendants breached the housing contract by preventing her from participating in it.

E. UNJUST ENRICHMENT

Unjust enrichment is an equitable theory that allows the trial court to imply a contract in
order to prevent the unjust enrichment of a party. Belle Isle Grill Corp v Detroit, 256 Mich App
463, 478; 666 NW2d 271 (2003). To show that a benefit would unjustly enrich the defendant, the
plaintiff must establish that the defendant received a benefit from the plaintiff, and that it would
be inequitable for the defendant to keep the benefit. Id. “No person is unjustly enriched unless

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the retention of the benefit would be unjust.” Tkachik v Mandeville, 487 Mich 38, 48; 790 NW2d
260 (2010) (quotation marks and citation omitted). Courts may not imply a contract under an
unjust-enrichment theory if there is an express agreement covering the same subject matter. Belle
Isle Grill Corp, 256 Mich App at 478.

In each case below, the University plaintiffs argue the trial court erred when it granted
summary disposition with respect to their unjust-enrichment claims because no express contract
governed the same subject matter as the claims for tuition and room and board. We disagree. The
University defendants’ housing contracts addressed the possibility of circumstances affecting the
health and welfare of students. Similarly, the University defendants’ tuition contracts specifically
addressed student payment obligations when registering for courses. The parties agreed to these
terms. Thus, the express agreements between the parties governed the same subject matter as their
equitable claims regarding tuition and room and board. And while Dalke claims that summary
disposition was premature and discovery was needed to develop her claims, we agree with the trial
court that further discovery would not stand a fair chance to uncover support for her claims. See
Marilyn Froling Revocable Living Trust, 283 Mich App at 292..

We also reject Dalke’s argument that the trial court erred when it granted summary
disposition with respect to parking and student service fees. The Central defendants established
Dalke’s parking permit was active from August 24, 2019 to August 21, 2020, and she was allowed
to park on campus. The Central defendants also established that the programs that received support
from the student services fee continued during the Spring 2020 semester. Dalke did not establish
that disputed issues of fact existed. She did not identify any facts to support that she was unable
to park on campus; instead, she cited her complaint, which is not permitted under MCR
2.116(G)(4). Dalke also argued that retention of the student services fee unjustly enriched the
Central defendants because she paid the fee with the understanding that services would occur on
campus. Again, Dalke merely relied on an unsupported allegation. Because Dalke did not properly
contest this issue under MCR 2.116(G)(4), the trial court did not err by granting summary
disposition.

F. MOTION TO AMEND

Dalke argues that the trial court abused its discretion when it denied her motion to amend
her complaint. A party may move the trial court for leave to amend a complaint, and “[l]eave shall
be freely given when justice so requires.” MCR 2.118(A)(2). If the trial court grants a party’s
motion for summary disposition under MCR 2.116(C)(8), (9), or (10), the trial court shall give the
parties an opportunity to amend the pleadings “unless the evidence then before the court shows
that amendment would not be justified.” MCR 2.116(I)(5). The trial court need not give a party
an opportunity to amend a pleading if the amendment would be futile. Weymers v Khera, 454 Mich
639, 659; 563 NW2d 647 (1997).

“An amendment is futile where, ignoring the substantive merits of the claim, it is legally
insufficient on its face.” Hakari v Ski Brule, Inc, 230 Mich App 352, 355; 584 NW2d 345 (1998)
(quotation marks and citation omitted). A proposed amendment is also futile if summary
disposition would be appropriately granted regarding the new claims, either when a party has not
established a genuine issue of material fact regarding an element, Ormsby v Capital Welding, Inc,
471 Mich 59-60; 684 NW2d 320 (2004), or when the undisputed facts establish that summary

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disposition would be appropriate, Nowacki v State Employees’ Retirement Sys, 485 Mich 1037,
1037; 776 NW2d 911 (2010).

The trial court granted summary disposition on Dalke’s allegations related to tuition and
fees on the basis that none of the documents that she provided promised that if she paid tuition,
the Central defendants “would exclusively provide in-person instruction.” Regarding Dalke’s
claim for fees, the account statement that she provided was not a contract because it provided no
promises in exchange for the fees. In Dalke’s proposed amendment, she based her allegation on a
“mutuality of obligation” because “the University was obligated to provide the traditional, live in-
person courses” specified in her course schedule. Dalke asserted that intrinsic evidence was
necessary to fill in the gaps of her fee statement.

The trial court properly denied Dalke’s motion for leave to amend because her proposed
amendment was based on documents that the trial court had already considered and with which
Dalke had already attempted to support her position. The trial court determined that the documents
did not promise live, in-person instruction. Dalke’s proposed amendment regarding her fee-related
claims are futile because she could not refute the Central defendants’ documentary evidence
regarding her express or implied contract claims. Thus, the trial court’s decision to deny her
motion for leave to amend did not fall outside the range of reasonable outcomes because the trial
court would have granted summary disposition on the amended claims for the same reasons it
originally granted summary disposition.

For similar reasons, we conclude the trial court did not abuse its discretion by concluding
Dalke’s proposed amendments to her room and board claims were futile. “[P]arol evidence of
contract negotiations or of prior or contemporaneous agreements that would contradict or vary the
terms of a written contract are not admissible to vary a contract that is clear and unambiguous.”
UAW-GM Human Resource Ctr, 228 Mich App at 492 (quotation marks and citation omitted). A
contract is ambiguous when its provisions are capable of conflicting interpretations. Nikkel, 460
Mich at 566.

The trial court granted summary disposition in favor of the Central defendants because the
trial court did not identify any terms or conditions of the parties’ housing contract that the Central
defendants had breached. The contract itself provided that there would be no refund for unused
meals. Additionally, Dalke voluntarily moved out of her residence hall and accepted a refund in
lieu of remaining in university housing. In arguing for leave to amend, Dalke stated that the
housing contract was not fully integrated and required parol evidence to interpret. Specifically she
argued that the contract did not specify the amounts that students would be charged for room and
board, and it was necessary to consider the student’s billing statement to determine the amounts
due. Dalke asserted that an implied term of the contract was that the premises would be fit for the
intended use by the parties.

The trial court did not abuse its discretion in determining that the proposed amended claims
related to the room and board contract were futile because they went beyond the plain language of
the contract. The decision did not fall outside the range of reasonable and principled outcomes
because Dalke’s proposed amendment offered parol evidence but did not establish that the contract
was ambiguous such that parol evidence was necessary. Similarly, Dalke stated that an implied
term of the contract was that the premises would be fit for their intended use, but she did not

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establish a basis by which the trial court could consider evidence beyond the contractual language
itself.

Lastly, the trial court did not abuse its discretion in denying Dalke’s proposed claim
regarding the CARES Act. In the context of her unjust-enrichment claim, Dalke’s proposed
amended complaint alleged that “[e]quity” required the Central defendants to refund a portion of
the monies received for tuition, especially since they received “government funds under the
CARES Act that could have been used for student refunds.” Although the trial court did not
specifically address the CARES Act by name, it denied Dalke’s motion for leave to amend on the
basis that her claims regarding unjust enrichment related to tuition were futile because Dalke could
not base her claim on the level or quality of education. This claim was not materially different
from the claim made in her original complaint. As discussed above, the trial court did not err when
it granted summary disposition in favor of the Central defendants regarding Dalke’s unjust-
enrichment claim. Accordingly, the trial court did not abuse its discretion when it denied virtually
the same claim in her proposed amended complaint.

Affirmed. As these cases present questions of public importance, no costs may be taxed
by the University defendants. See MCR 7.219(A).

/s/ Kirsten Frank Kelly
/s/ James Robert Redford

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