Bayberry Grp., Inc. v. Crystal Beach Condo. Ass'n

Decision Date22 October 2020
Docket NumberNo. 349378,349378
Citation964 N.W.2d 846,334 Mich.App. 385
Parties BAYBERRY GROUP, INC., Plaintiff/Counterdefendant-Appellant, v. CRYSTAL BEACH CONDOMINIUM ASSOCIATION, Gentle Winds Condominium Association, Tall Timber Condominium Association, and Great Lakes Condominium Association, Defendants/Counterplaintiffs-Appellees.
CourtCourt of Appeal of Michigan — District of US

Varnum LLP, Grand Rapids, (by Jon M. Bylsma ) for Bayberry Group, Inc.

Olson, Bzdok & Howard, PC, Traverse City, (by Ross A. Hammersley ) for Crystal Beach Condominium Association and Gentle Winds Condominium Association.

Alward Fisher Rice Rowe & Graf, PLC, Traverse City, (by Nicole R. Graf ) for Tall Timber Condominium Association and Great Lakes Condominium Association.

Before: Murray, C.J., and Cavanagh and Cameron, JJ.

Cameron, J. Plaintiff, Bayberry Group, Inc., a successor to the developer of The Homestead, appeals a May 24, 2019 opinion and order, which was entered following a bench trial. We affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.


This matter arises from a dispute involving the interpretation of condominium documents and Michigan common law as it relates to the obligations of defendants, Crystal Beach Condominium Association, Gentle Winds Condominium Association, Great Lakes Condominium Association, and Tall Timber Condominium Association, to pay for the maintenance, repair, and upkeep of a roadway easement called the South Homestead Road easement. South Homestead Road connects defendants' respective properties and other properties in The Homestead to M-22. Portions of Winds' South Homestead Road traverse Gentle Winds' property, Great Lakes' property, and Tall Timber's property.

The Homestead is a recreational resort located on the shores of Lake Michigan. Defendants were four of the five earliest condominium projects at The Homestead, and defendants' master deeds were recorded in the 1970s. Thereafter, the number of condominium associations at The Homestead increased. In 2013, Bayberry began engaging with representatives of the various condominium associations. Bayberry sought an agreement to share the costs of maintaining the roadways and other areas within The Homestead. As a result of these efforts, the Common Area Maintenance Agreement ("CAM agreement") was created. The CAM agreement provided for maintenance of all of the "Roadway Areas" within The Homestead, which included the South Homestead Road easement. "Roadway Areas" included not only the paved or graveled roadways, but also "lawns and the entirety of any planting bed or any other landscaping lying wholly or partially within the width of the roadway easement." A majority of the condominium associations serviced by South Homestead Road executed the CAM agreement, but defendants did not. The CAM agreement became effective on January 1, 2015.

After defendants refused to pay a share of fees under the CAM agreement, Bayberry filed suit against defendants on July 13, 2017. In relevant part, Bayberry alleged that the South Homestead Road easement is a general common element of each condominium project and that, under defendants' master deeds and bylaws, defendants were responsible for its maintenance, repair, and upkeep. Bayberry requested that it be awarded damages for maintenance costs from 2011 through 2017 and that the trial court order defendants to "pay an amount equal to the total cost of maintenance, repair and upkeep of the Easement less the usage costs incurred by all other associations and Co-owners...." Defendants denied that the South Homestead Road easement was listed as a common element in their condominium documents. In their affirmative defenses, defendants asserted that the doctrine of waiver and the defense of laches barred Bayberry's claims for damages because Bayberry (and its predecessors in interest) had failed to request any cost-sharing payments for more than 35 years following the creation and recording of the condominium documents.

Following a three-day bench trial, the trial court found that "the ingress/egress Easement of South Homestead Road, from M-22 to the Condominium Projects, is not a common element of" defendants' master deeds and condominium documents. The trial court held that because defendants had "no contractual obligation" for the South Homestead Road easement's "maintenance, repair, decoration and replacement," Bayberry was "not entitled to any past damages." The trial court also concluded that even if defendants had been contractually obligated under their condominium documents to pay for costs associated with the easement, Bayberry's claim for past damages would have been waived and barred by the defense of laches. The trial court held that Bayberry was entitled to "future expenses" for the maintenance of the South Homestead Road easement under common law. Specifically, the trial court held as follows:

[G]oing forward, [d]efendants are obligated [under common law] to contribute their proportionate share of the cost for maintenance, repair and upkeep of the portion of South Homestead Road necessary for their safe ingress and egress, based on their use, and likewise, [Bayberry] is obligated to contribute its proportionate share of the cost for maintenance, repair and upkeep, based on use, for the portion of South Homestead Road that crosses Defendants' real property.
* * *
Defendants' responsibility for repair, maintenance and upkeep of the ingress/egress Easement shall be limited to costs associated with salting and sanding, snowplowing, keeping the road clear of debris and repair/replacement/repaving of the road and road drains. Landscaping, mowing, irrigation, electrical/lighting and signage [are] not essential to maintain safe ingress and egress and thus, shall not be included costs associated with "repair, maintenance and upkeep."

The trial court held that "the cost of future repair and maintenance should be distributed among all users in proportions that closely approximate the usage of the respective parties." The trial court created a formula in an attempt to accomplish this. This appeal followed.


"This Court reviews a trial court's findings of fact in a bench trial for clear error and its conclusions of law de novo. A finding is clearly erroneous where, after reviewing the entire record, this Court is left with a definite and firm conviction that a mistake has been made." Alan Custom Homes, Inc. v. Krol , 256 Mich. App. 505, 512, 667 N.W.2d 379 (2003) (citations omitted). "The construction and interpretation of an unambiguous contract is a question of law that we review de novo." See Rossow v. Brentwood Farms Dev., Inc. , 251 Mich. App. 652, 658, 651 N.W.2d 458 (2002). "The extent of a party's rights under an easement is a question of fact, and a trial court's determination of those facts is reviewed for clear error. A trial court's dispositional ruling on equitable matters, however, is subject to review de novo." Blackhawk Dev. Corp. v. Village of Dexter , 473 Mich. 33, 40, 700 N.W.2d 364 (2005).


Bayberry first argues that the trial court erred by holding that the "roadway easement was not a common element" of each condominium project. According to Bayberry, because the master deeds and bylaws provide that South Homestead Road is a common element, defendants (along with the other co-owners) were solely responsible for the road's maintenance, repair, upkeep, decoration, and replacement. We disagree.

"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 N.W.2d 95 (2014). In this case, defendants' master deeds and the relevant accompanying condominium documents constitute the contracts. In interpreting these documents, this Court applies the rules governing construction of a contract. See Rossow , 251 Mich. App. at 658-659, 651 N.W.2d 458.

The goal of contract interpretation "is to determine and enforce the parties' intent on the basis of the plain language of the contract itself." AFSCME v. Detroit , 267 Mich. App. 255, 261-262, 704 N.W.2d 712 (2005). The words of a contract "are interpreted according to their plain and ordinary meaning," and this Court "gives effect to every word, phrase, and clause" while avoiding "interpretations that would render any part of the document surplusage or nugatory." Tuscany Grove Ass'n v. Peraino , 311 Mich. App. 389, 393, 875 N.W.2d 234 (2015). If a contract incorporates another document by reference, the two writings should be read together. Forge v. Smith , 458 Mich. 198, 207 & n. 21, 580 N.W.2d 876 (1998). Ultimately, this Court enforces clear and unambiguous language as written. Tuscany Grove Ass'n , 311 Mich. App. at 393, 875 N.W.2d 234.

A "master deed" is "the condominium document recording the condominium project to which are attached as exhibits and incorporated by reference the bylaws for the project and the condominium subdivision plan for the project." MCL 559.108. A "condominium project," which is defined as "a plan or project consisting of not less than 2 condominium units established in conformance with [the Condominium Act]," MCL 559.104(1), is established upon the recording of a master deed, MCL 559.172(1). Importantly, the master deed must include an accurate legal description of the land involved in the project. MCL 559.108(a). The Condominium Act, MCL 559.101 et seq., specifically addresses easements in MCL 559.135, which states the following:

Where fulfillment of the purposes of sections 31, 32, 33 or any other sections of this act reasonably requires the creation of easements, then the easements shall be created in the condominium documents or in other appropriate instruments and shall be

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