STATE OF MICHIGAN COURT OF APPEALS

Transcription

1 STATE OF MICHIGAN COURT OF APPEALS ORCHARD ESTATES OF TROY CONDOMINIUM ASSOCIATION, INC., CHRISTOPHER J. KOMASARA, and MARIA KOMASARA, UNPUBLISHED September 18, 2008 Plaintiffs-Appellees, v No Oakland Circuit Court FOUAD DAWOOD and NADIYA DAWOOD, LC No CZ Defendants-Appellants. Before: Borrello, P.J., and Murray and Fort Hood, JJ. PER CURIAM. Defendants appeal as of right from the trial court s order granting partial summary disposition for plaintiffs. In this case, the bylaws were inoperative because they were not filed along with the master deed as required by MCL et. seq., accordingly, we reverse the trial court s decision to deny defendant s summary disposition and remand the matter to the trial court for entry of judgment in favor of defendants. Defendants first argue that plaintiffs lacked standing to sue under the condominium bylaws because they were never recorded. Although defendants failed to preserve this issue for appellate review, we address it because doing so is necessary for a proper determination of this case, and this issue involves a question of law regarding which all the facts necessary have been presented. Brown v Loveman, 260 Mich App 576, 599; 680 NW2d 432 (2004). Whether a party has standing to bring an action is a question of law that this Court reviews de novo. Nat l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 612; 684 NW2d 800 (2004). Moreover, whether the bylaws were ineffective because they were not recorded involves a question of statutory interpretation that this Court also reviews de novo. Tousey v Brennan, 275 Mich App 535, 538; 739 NW2d 128 (2007). When interpreting statutory language, courts must ascertain the legislative intent that may reasonably be inferred from the words in a statute. Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). When the Legislature has unambiguously conveyed its intent, the statute speaks for itself and judicial construction is neither necessary nor permitted. Id. Courts must give effect to every word, phrase, and clause in a statute and avoid an interpretation -1-

2 that renders nugatory or surplusage any part of a statute. Id. Undefined words should be accorded their plain and ordinary meanings, and dictionary definitions may be consulted in such situations. Id. Further, courts should construe an act as a whole to harmonize its provisions and carry out the purpose of the Legislature. Macomb Co Prosecutor v Murphy, 464 Mich 149, 159; 627 NW2d 247 (2001). As defendants assert, the bylaws were not recorded along with the master deed as required under MCL Plaintiffs contend, however, that the bylaws were not required to be recorded to be effective under that statute. MCL provides: The administration of a condominium project shall be governed by bylaws recorded as part of the master deed, or as provided in the master deed. An amendment to the bylaws of any condominium project shall not eliminate the mandatory provisions required by section 54. An amendment shall be inoperative until recorded. [Emphasis added.] Further, MCL (9) defines [c]ondominium bylaws or bylaws as the required set of bylaws for the condominium project attached to the master deed, and MCL defines master deed as 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. Reading these statutes together, it is clear that the Legislature contemplated that condominium bylaws be recorded either as part of the master deed, or as provided in the master deed. The provision stating that amendments to the bylaws are inoperative until recorded evidences the Legislature s intent that the bylaws be recorded in order to be operative. Here, it appears that the Komasaras may have intended to record the bylaws along with the master deed, but failed to do so. The master deed provides, in relevant part: WHEREAS, Developer [the Komasaras] intends, by recording this Master Deed, together with the Condominium By-Laws attached as Exhibit A, and the Condominium Subdivision Plan, attached as Exhibit B (both of which are incorporated by reference and made a part of this Deed), to establish the real property described in Article II below, together with all attachments, appurtenances, and improvements located on that real property, as a condominium under the provisions of the Michigan Condominium Act, MCL et seq. (referred to in this document as the Act ). Although the master deed refers to the bylaws, they were not attached as an exhibit, contrary to the language in the master deed. Rather, the subdivision plan was the only attachment to the master deed, and the plan was recorded immediately after the master deed was recorded according to the liber and page numbers appearing on those documents. In accordance with the statutory provisions previously discussed, the bylaws were inoperative because they were never recorded. As such, plaintiffs had no cause of action against defendants to enforce the bylaws. Defendants similarly argue that the restrictive covenants were not binding because they were likewise not recorded. Again, defendants failed to preserve this issue for appellate review, but we nevertheless address it because doing so is necessary for a proper determination of this -2-

3 case, and this issue involves a question of law regarding which all the necessary facts have been presented. Brown, supra at 599. The enforceability of a restrictive covenant is a question of law that this Court reviews de novo. Terrien v Zwit, 467 Mich 56, 60-61; 648 NW2d 602 (2002). Negative covenants... are grounded in contract. Stuart v Chawney, 454 Mich 200, 210; 560 NW2d 336 (1997). A covenant running with the land is a contract created to enhance the value of property and, accordingly, is a valuable property right. Terrien, supra at 71, citing City of Livonia v Dep t of Social Services, 423 Mich 466, 525; 378 NW2d 402 (1985). In an action to enforce a covenant, the intent of the drafter controls, and where the language of a restriction is clear, the parties are confined to the language employed. Stuart, supra at 210; Moore v Kimball, 291 Mich 455, 461; 289 NW 213 (1939). In other words, when interpreting a restrictive covenant that contains no ambiguity, a court should not enlarge or extend the meaning of a covenant by judicial interpretation. Webb v Smith (After Remand), 204 Mich App 564, 572; 516 NW2d 124 (1994). In addition, restrictions are generally construed against those attempting to enforce the restrictions, and all doubts are resolved in favor of the free use of the property. Moore, supra at 461. Defendants argue that the restrictive covenants are not binding because they were never recorded. The plain language of the covenants supports their argument. The covenants provide, in relevant part: Duration of Covenants. These Covenants are intended to run with the land and shall be binding on all parties and all persons claiming under them for a period of not less than thirty-five years from the date this Declaration of Restrictive Covenants is filed in the office of the Oakland County Register of Deeds, after which time these Covenants shall be automatically extended for successive periods of 10 years each unless an instrument signed by at least 51% or more of the Co-Owners of all Units in the Orchard Estates Condominium has been recorded agreeing to change these Covenants in whole or in part. [Italics added.] Pursuant to the plain language of this paragraph, the covenants are binding only after they are recorded. Because they were never recorded with the Oakland County Register of Deeds, they are not binding. Moreover, because the language of the restriction is clear, the parties are confined to the language employed. Stuart, supra at 210; Moore, supra 461. Accordingly, the restrictions are not binding on defendants, and plaintiffs have no cause of action against defendants for violation of the covenants. Plaintiffs argue that statutory law prohibited defendants from changing the appearance of their unit and required their compliance with the restrictive covenants. Plaintiffs rely on MCL (1), which provides, in relevant part: [A] co-owner shall not do anything which would change the exterior appearance of a condominium unit or of any other portion of the condominium project except to the extent and subject to the conditions as the condominium documents may specify. Plaintiffs also rely on MCL , which states: -3-

4 Each unit co-owner, tenant, or nonco-owner occupant shall comply with the master deed, bylaws, and rules and regulations of the condominium project and this act. As previously explained, neither the bylaws nor the restrictive covenants were binding, because they were not recorded. Thus, defendants modifications were not contrary to the relevant condominium documents. Accordingly, plaintiffs reliance on these statutory provisions is unavailing. Based on our resolution of these issues, it is unnecessary to address defendants remaining issues on appeal. Reversed. /s/ Stephen L. Borrello /s/ Karen M. Fort Hood -4-

5 STATE OF MICHIGAN COURT OF APPEALS ORCHARD ESTATES OF TROY CONDOMINIUM ASSOCIATION, INC., CHRISTOPHER J. KOMASARA, and MARIA KOMASARA, UNPUBLISHED September 18, 2008 Plaintiffs-Appellees, v No Oakland Circuit Court FOUAD DAWOOD and NADIYA DAWOOD, LC No CZ Defendants-Appellants. Before: Borrello, P.J., and Murray and Fort Hood, JJ. MURRAY, J. (concurring in part, dissenting in part). I concur in part with the majority s decision to reverse the trial court s order granting plaintiffs partial motion for summary disposition, though my reasons are entirely different than those of the majority. Rather than deciding the case based on unpreserved arguments, I would hold that the trial court erred in holding that the brick paver driveway constituted a structure which may be erected under the by-laws, but was correct in all other respects. I would therefore affirm in part, reverse in part, and remand. Defendants arguments on appeal, that plaintiffs lacked standing and that the by-laws were invalid, are premised on the failure of the by-laws to be recorded with the master deed. MCL However, neither of these legal issues was timely raised below. A challenge to a party s standing must be raised in the first responsive pleading or motion, see MCR 2.116(D)(2) and Stanke v State Farm Mutual Auto Ins Co, 200 Mich App 307, 319; 503 NW2d 758 (1993), and that was not done here. Additionally, raising a new issue in a motion for reconsideration is untimely, and does not properly preserve an issue for appellate review. Farmers Ins Exch v Farm Bureau Gen Ins Co of Michigan, 272 Mich App 106, 117; 724 NW2d 485 (2006). That is the only way the standing issue was raised, and that is insufficient for our review. And, [a]s any casual reader of the Michigan Appeals Reports will recognize, we quite frequently inform parties that we will not address an issue not raised to or decided by the trial court, on the basis that it is not properly preserved. People v Michielutti, 266 Mich App 223, ; 700 NW2d 418 (2005) (Murray, J., concurring in part, dissenting in part), rev d 474 Mich 889 (2005), citing, inter alia, Adam v Sylvan Glynn Golf Course, 197 Mich App 95, 98; -1-

6 494 NW2d 791 (1992). Defendants did not raise the invalidity of the by-laws issue before the trial court, and therefore it was not properly preserved, and we should not consider it here. 1 Nevertheless, regarding the issues actually raised and decided by the trial court, I conclude that the trial court erred in part in its interpretation of the restrictive covenants. The trial court held that the brick paver patio and sidewalk constituted a structure for purposes of the restrictive covenants, and therefore needed to be approved by the other property owners. 2 The language at issue provides that, other than a one-family dwelling, garage and pole building, no other accessory buildings or structures may be erected in any manner or location unless approved in writing pursuant to the by-laws. Although the parties and the trial court placed great emphasis on the word structures, in my view the dispositive term in the foregoing sentence is erected. Because the term erected is not defined by the covenant, we can resort to a dictionary to define the ordinary meaning of the term. Citizens Ins Co v Pro-Seal Service Group, 477 Mich 75, 84; 730 NW2d 682 (2007). Erect has many definitions, including to fix in an upright position, to cause to stand up or out, to put up by the fitting together of materials or parts. Webster s New Collegiate Dictionary (1980). Thus, for the structure to be prohibited unless approved in writing, it must have been erected, or somehow built upwards. Here, the flat driveway was obviously not erected, but the patio and surrounding wall was, as it was built upwards, i.e., erected. Accordingly, I would affirm the trial court s ruling that the patio was in violation of the restrictive covenant, and would reverse the trial court s holding that the driveway was in violation of the covenant. /s/ Christopher M. Murray 1 No doubt we are able to resolve unpreserved legal issues on appeal when the facts are undisputed and in the record. However, we should resist use of that doctrine and decide the merits of the issues decided below. 2 The trial court did not err in granting defendants motion for summary disposition as to the exterior lighting. MCR (G)(4). -2-