Estate v. Boulder Bluff Condominiums Units 73-123, 125-146, Inc.

• Decision Date: 15 October 2020
• Docket Number: No. 348254,No. 347653,347653
• Citation: 964 N.W.2d 133,334 Mich.App. 188
• Parties: ESTATE OF Robert J. ROMIG, BY Bobbie Jo KOOMAN, Personal Representative, and Terry Romig, Plaintiffs-Appellants, v. BOULDER BLUFF CONDOMINIUMS UNITS 73-123, 125-146, INC., doing business as Boulder Bluff Estates Condominium Association, and Gerow Management Company, Inc., Defendants-Appellees. Estate of Robert J. Romig, by Bobbie Jo Kooman, Personal Representative, and Terry Romig, Plaintiffs-Appellants, v. Boulder Bluff Condominiums Units 73-123, 125-146, Inc., doing business as Boulder Bluff Estates Condominium Association, "Boulder Bluff Estates Condominium Association," and Gerow Management Company, Inc., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

334 Mich.App. 188

964 N.W.2d 133

ESTATE OF Robert J. ROMIG, BY Bobbie Jo KOOMAN, Personal Representative, and Terry Romig, Plaintiffs-Appellants,

v.BOULDER BLUFF CONDOMINIUMS UNITS 73-123, 125-146, INC., doing business as Boulder Bluff Estates Condominium Association, and Gerow Management Company, Inc., Defendants-Appellees.

Estate of Robert J. Romig, by Bobbie Jo Kooman, Personal Representative, and Terry Romig, Plaintiffs-Appellants,

v.Boulder Bluff Condominiums Units 73-123, 125-146, Inc., doing business as Boulder Bluff Estates Condominium Association, "Boulder Bluff Estates Condominium Association," and Gerow Management Company, Inc., Defendants-Appellees.

No. 347653

No. 348254

Court of Appeals of Michigan.

Submitted October 8, 2020, at Grand Rapids.

Decided October 15, 2020, 9:05 a.m.

Zelmanski, Danner & Fioritto, PLLC, Plymouth, (by Richard L. Wagner, Jr., and Melissa D. Francis ) for plaintiffs.

Secrest Wardle, Grand Rapids, (by Drew W. Broaddus and Amanda B. Fopma ) for Boulder Bluff Condominiums Units 73-123, 125-145, Inc., and Boulder Bluff Estates Condominium Association.

Bosch Killman VanderWal, PC (by Joseph P. VanderVeen ) for Gerow Management Company, Inc.

Steve Tomkowiak for the Fair Housing Center of West Michigan, Fair Housing Center of Southwest Michigan, Fair Housing Center of Southeast & MidMichigan, and Fair Housing Center of Metropolitan Detroit.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, B. Eric Restuccia, Deputy Solicitor General, and Ron D. Robinson, Assistant Attorney General, for the Michigan Civil Rights Commission and the Michigan Department of Civil Rights.

Before: Letica, P.J., and K. F. Kelly and Redford, JJ.

Per Curiam.

In Docket No. 347653, plaintiffs, Bobbie Jo Kooman, as personal representative for the estate of Robert J. Romig, and Terry Romig, appeal by leave granted¹ the trial court's order granting partial summary disposition in favor of defendant Gerow Management Company, Inc. (Gerow) pursuant to MCR 2.116(C)(10). In Docket No. 348254, plaintiffs appeal by leave granted² the trial court's order granting partial summary disposition in favor of defendants Boulder Bluff Condominiums, Units 73-123, 125-146, Inc., doing business as Boulder Bluff Estates Condominium Association, and Boulder Bluff Estates Condominium Association (the Association)³ pursuant to MCR 2.116(C)(8).⁴

We conclude that the Association's denial of the initial request for installation of a railing as an accommodation to assist a disabled person did not constitute discrimination in a "real estate transaction" as that phrase is defined in the Persons with Disabilities Civil Rights Act (the PWDCRA), MCL 37.1101 et seq. Because plaintiffs’ claimed violations of the protections delineated in the PWDCRA are limited to "the sale, exchange, rental, or lease of real property, or an interest therein," MCL 37.1501(d), and plaintiffs’ request did not arise from such a transaction, the trial court properly granted defendants’ motions for partial summary disposition. Therefore, finding no errors warranting reversal, we affirm.

I. BASIC FACTS⁵ AND PROCEDURAL HISTORY

In 2009, Terry Romig (Terry) purchased Unit 85 of Boulder Bluff Condominiums, and she lived there with her ex-husband Robert J. Romig (the decedent). The decedent was disabled and had limited ability to stand and walk. Consequently, in June 2016, Terry submitted an accommodation request to Gerow in accordance with the bylaws of Boulder Bluff Condominiums for permission to install a railing on the front porch and adjacent stairs of Unit 85. With the request, Terry submitted a photograph of the type and kind of railing to be installed. At the request of Gerow's employee, Terry provided additional information regarding the coverage and location of the railing, the installer, and the method of attachment of the railing to the porch. She also advised that installation could occur "around July 4." While waiting for a decision from the board of directors of the Association, the decedent fell down the stairs and was hospitalized. Terry informed Gerow and the board of directors of the decedent's fall. Nonetheless, on July 1, 2016, Gerow notified Terry by letter that the board of directors denied the modification request to install a railing to the porch and stairs of Unit 85. The board denied the request because "the proposed railing would be a permanent change modifying the overall appearance of the unit in comparison to the rest of the association as well as the installation would cause damage to the concrete porch."

In a letter dated July 28, 2016, counsel for Terry and the decedent advised the Association board that the board did not comply with the Association's bylaws because the denial failed to advise Terry of the changes necessary to permit the proposed improvement. The letter also stated that the denial was contrary to federal and state housing law, including MCL 559.147 of the Michigan Condominium Act, MCL 559.101 et seq . Counsel attached a letter from Dr. Diana Dillman advising that the decedent was disabled and "need[ed] to have side rails and hand rails for his safety." On August 20, 2016, the decedent fell a second time while attempting to maneuver the front porch stairs. Once again, he was hospitalized for this fall. In a letter dated August 23, 2016, Gerow advised Terry that her request to install a railing on the front porch adjacent to her unit was approved and delineated the specifications for the installation. On January 31, 2017, the decedent died.

Ultimately, plaintiffs filed a three-count complaint against defendants, alleging that defendants’ delay or refusal to allow the disability modification discriminated against the decedent. Specifically, in Counts 1 and 2, plaintiffs alleged that defendants, in delaying or refusing the handrail, violated the PWDCRA. In Count 3, plaintiffs alleged that defendants violated Michigan's Condominium Act. Gerow moved for partial summary disposition, arguing that plaintiffs did not have a cause of action pursuant to MCL 37.1506a(1)(a) or MCL 37.1502(1)(b) because both provisions of the PWDCRA required that the alleged discrimination occur "in connection with a real estate transaction." Gerow claimed that the alleged discrimination did not occur "in connection with a real estate transaction" because Terry owned her condominium unit years before the alleged discrimination occurred. The trial court agreed with Gerow and found that this situation did not fit the PWDCRA's definition of a "real estate transaction." After the trial court granted Gerow's motion, Boulder Bluff Condominiums and the Association filed their own motion for partial summary disposition relying on the "real estate transaction" argument raised by Gerow, and the trial court granted this motion as well. Plaintiffs appeal by leave granted both orders granting defendants’ motions for partial summary disposition.

II. STANDARD OF REVIEW

A trial court's ruling on a motion for summary disposition is reviewed de novo.

Bennett v. Russell , 322 Mich. App. 638, 642, 913 N.W.2d 364 (2018). Summary disposition is proper under MCR 2.116(C)(8) if the opposing party has failed to state a claim upon which relief can be granted. Brickey v. McCarver , 323 Mich. App. 639, 641, 919 N.W.2d 412 (2018). A motion for summary disposition premised on MCR 2.116(C)(8) tests the legal sufficiency of the complaint by solely examining the pleadings. Sullivan v. Michigan , 328 Mich. App. 74, 80, 935 N.W.2d 413 (2019). All well-pleaded factual allegations are accepted as true and construed in the light most favorable to the nonmoving party. Id. A motion for summary disposition under MCR 2.116(C)(8) should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly uphold a right of recovery. Brickey , 323 Mich. App. at 641-642, 919 N.W.2d 412.

Summary disposition is appropriate pursuant to MCR 2.116(C)(10) when there is "no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." MCR 2.116(C)(10). When reviewing a motion for summary disposition challenged under MCR 2.116(C)(10), the court considers the affidavits, pleadings, depositions, admissions, and other admissible documentary evidence then filed in the action or submitted by the parties. MCR 2.116(G)(4) and (5) ; Puetz v. Spectrum Health Hosps. , 324 Mich. App. 51, 68, 919 N.W.2d 439 (2018).

III. STATUTORY INTERPRETATION

"A decision on ... the interpretation of a statute [is] reviewed de novo."

ADR Consultants, LLC v. Mich. Land Bank Fast Track Auth. , 327 Mich. App. 66, 74, 932 N.W.2d 226 (2019). Issues involving statutory interpretation present questions of law that are reviewed de novo. Meisner Law Group, PC v. Weston Downs Condo. Ass'n , 321 Mich. App. 702, 714, 909 N.W.2d 890 (2017). "The primary goal of statutory interpretation is to give effect to the intent of the Legislature." Briggs Tax Serv., L.L.C. v. Detroit Pub. Sch. , 485 Mich. 69, 76, 780 N.W.2d 753 (2010). The most reliable evidence of legislative intent is the plain language of the statute. South Dearborn Environmental Improvement Ass'n, Inc. v. Dep't of Environmental Quality , 502 Mich. 349, 360-361, 917 N.W.2d 603 (2018). If the language of the statute is clear and unambiguous, it is presumed that the Legislature intended the meaning plainly expressed in the statute. Gardner v. Dep't of Treasury , 498 Mich. 1, 6, 869 N.W.2d 199 (2015). The court's interpretation of a statute must give effect to every word, phrase, and clause. South Dearborn , 502 Mich. at 361 . Further, an interpretation that would render any part of the statute surplusage or nugatory must be avoided. Id. Common words and phrases are given their plain meaning as determined by the context in which the words are used, and a dictionary may be consulted to ascertain the meaning of an undefined word or phrase. Id. "In construing a legislative

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