Election recount; MCL 168.881(3) & (7); MI Admin Code, R 168.907(1), 168.912, 168.916, 168.926, & 168.927; Unjust enrichment; Bellevue Ventures, Inc v Morang-Kelly Inv, Inc; Tkachik v Mandeville; MCR 2.116(C)(8)

Holding that the trial court erred in dismissing plaintiffs’ complaint alleging unjust enrichment related to an election recount under MCR 2.116(C)(8), the court reversed and remanded. Plaintiff-Johnsen ran for a seat in the state Legislature in the 2020 election. She requested and paid for a recount. The complaint alleged an unjust enrichment claim based on violation of statutory recount procedures. The court noted that the elements of an unjust enrichment claim “‘are (1) receipt of a benefit by the defendant from the plaintiff, and (2) an inequity resulting to plaintiff from defendant’s retention of the benefit.’” As to the first element, plaintiffs alleged “they paid the statutory deposit for a recount to defendants but were not allowed the recount observation to which they were entitled under statute, administrative rule, and court order.” Defendants’ receipt of money would “constitute a ‘benefit’ for the purposes of the first element.” But they noted (and plaintiffs did not dispute) “that the deposit paid to defendants was remitted to the county treasurer in accordance with MCL 168.881(7) because” the recount was unsuccessful. Thus, they no longer have “the deposit. And the county treasurer was not named as a defendant.” While the court acknowledged “that plaintiffs might have been better served to name the county treasurer as” another defendant, in ruling on a (C)(8) motion, only the pleadings are considered. The complaint “did not allege, or even closely imply, that defendants remitted the deposit to the county treasurer. Thus, when considering the pleadings alone, it must be reasonably inferred that defendants retained the deposit.” As to the second element, at “a minimum, plaintiffs’ allegation that ‘[p]oll workers hung semi-opaque shower curtains around their tables which obstructed the candidate and her watchers and talliers,’ if true, would seemingly constitute a violation of MCL 168.874(2), as well as Rules 168.912 and 168.916, each of which expressly allow representatives to ‘observe[]’ the recount process.” The court found that plaintiffs’ allegations were “sufficiently serious to suggest that, if they are true, it would be inequitable for defendants to retain the deposit. Visually obstructing a ballot recount almost defeats the purpose of the recount itself, as it cannot be publicly validated that election officials conducted an accurate counting.” The court held that plaintiffs pled both elements.