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noting that statutes are to be read in context
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No. 347653 No. 348254
10-15-2020
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.
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.
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 granted 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 granted 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) pursuant to MCR 2.116(C)(8).
Estate of Romig v. Boulder Bluff Condos , unpublished order of the Court of Appeals, entered July 29, 2019 (Docket No. 347653).
Estate of Romig v. Boulder Bluff Condos , unpublished order of the Court of Appeals, entered July 29, 2019 (Docket No. 348254).
Plaintiff Bobbie Jo Kooman is the daughter of the decedent, Robert J. Romig, and the personal representative of his estate. Plaintiff Terry Romig is the purchaser and co-owner of the condominium where Robert J. Romig resided before his death. Defendant Boulder Bluff Condominiums, Units 73-123, 125-146, Inc., in effect, does business as Boulder Bluff Estates Condominium Association and is a Michigan nonprofit corporation designed to administer the affairs of Boulder Bluff Condominiums. Gerow Management, Inc., is the corporation that serves as the property manager for the Association.
For efficient administration purposes, the appeals were consolidated. Estate of Romig v. Boulder Bluff Condos , unpublished order of the Court of Appeals, entered September 4, 2019 (Docket Nos. 347635 and 348254).
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 FACTS AND PROCEDURAL HISTORY
There were no depositions or affidavits filed by the parties addressing the facts in the lower court record. Accordingly, our factual summary is drawn from the complaint, the dispositive motion pleadings, and the trial court's written opinion and order.
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 enactment we are not at liberty to choose a construction that implements any rational purpose but, rather, must choose the construction which implements the legislative purpose perceived from the language and the context in which it is used." Frost-Pack Distrib. Co. v. Grand Rapids , 399 Mich. 664, 683, 252 N.W.2d 747 (1977). [ Le Gassick v. Univ. of Mich. Regents , 330 Mich.App. 487, 494–496, 948 N.W.2d 452 (2019).]
Additionally, statutes must be construed as a whole with the provisions read in the context of the entire statute so as to produce a harmonious whole. Bachman v. Swan Harbour Assoc. , 252 Mich. App. 400, 414, 653 N.W.2d 415 (2002). "The last-antecedent rule provides that a modifying clause is confined to the last antecedent unless something in the subject matter or dominant purpose [of the statute] requires a different interpretation." Campbell v. Dep't of Treasury , 331 Mich. App. 312, 320, 952 N.W.2d 568 (2020) (quotation marks and citation omitted; alteration in original). "However, this rule does not apply when the modifying clause is set off by punctuation, such as a comma." Id. (quotation marks and citation omitted). Additionally, "[a] dependent clause set off by commas from the rest of the sentence is not to be viewed as an independent clause operating separately but, rather, as part of the complex sentence overall." Id. (quotation marks and citation omitted). Furthermore, "the word ‘or’ is a disjunctive word that is used to indicate a disunion, a separation, an alternative." Id. (quotation marks and citation omitted).
IV. THE PWDCRA
When this Court construes "the statutory provisions contained in the PWDCRA, [it must] construe the language reasonably, keeping in mind the purpose of the act." Bachman , 252 Mich. App. at 414, 653 N.W.2d 415. "The purpose of the PWDCRA is to ensure that all persons be accorded equal opportunities to obtain housing." Id. The PWDCRA "is remedial and is to be liberally construed to effectuate its ends." Id. However, in general, "the policy behind a statute cannot prevail over what the text actually says." Elezovic v. Ford Motor Co. , 472 Mich. 408, 421-422, 697 N.W.2d 851 (2005).
"The PWDCRA, which was enacted in 1976 for the protection of persons with disabilities, is divided into six separate articles." Bachman , 252 Mich.App. at 412, 653 N.W.2d 415. Relevant to this case, Article 5 addresses the protected area of housing. Id.
Plaintiffs submit that two provisions of the PWDCRA were violated in this case, MCL 37.1502(1)(b) and MCL 37.1506a(1)(a). MCL 37.1502 prohibits certain discriminatory acts and provides, in relevant part, as follows:
(1) An owner or any other person engaging in a real estate transaction, or a real estate broker or salesman shall not, on the basis of a disability of a buyer or renter, of a person residing in or intending to reside in a dwelling after it is sold, rented, or made available, or of any person associated with that buyer or renter, that is unrelated to the individual's ability to acquire, rent, or maintain property or use by an individual of adaptive devices or aids:
* * *
(b) Discriminate against a person in the terms, conditions, or privileges of a real estate transaction or in the furnishing of facilities or services in connection with a real estate transaction. [Emphasis added.]
MCL 37.1506a also prohibits certain discriminatory acts and provides, in relevant part, as follows:
(1) A person shall not do any of the following in connection with a real estate transaction :
(a) Refuse to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by the person with a disability if those modifications may be necessary to afford the person with a disability full enjoyment of the premises. In the case of a rental, the landlord may, if reasonable, make permission for a modification contingent on the renter's agreement to restore the interior of the premises to the condition
that existed before the modification, reasonable wear and tear excepted. [Emphasis added.]
MCL 37.1501 provides definitions relevant to Article 5 of the PWDCRA, and MCL 37.1501(d) defines "real estate transaction" as "the sale, exchange, rental, or lease of real property, or an interest therein."
V. ANALYSIS
Plaintiffs allege that the trial court erred in granting partial summary disposition to defendants because (1) the definition of "real estate transaction" includes the phrase "an interest therein" and the Association's governing documents constitute "an interest therein," (2) the trial court failed to interpret the statute as a whole, and (3) the trial court erred in determining that protections are inapplicable once a real estate purchase or exchange is complete. We disagree.
A. CONDOMINIUM ASSOCIATION MASTER DEED AND BYLAWS
The plain language of MCL 37.1502(1)(b) precludes discrimination against a disabled person "in the terms, conditions, or privileges of a real estate transaction or in the furnishing of facilities or services in connection with a real estate transaction." Additionally, the plain language of MCL 37.1506a(1)(a) provides that reasonable modifications cannot be refused when necessary for a disabled person's full enjoyment of premises in connection with a real estate transaction. Again, "real estate transaction" is defined as "the sale, exchange, rental, or lease of real property, or an interest therein." MCL 37.1501(d).
Plaintiffs submit that the Association's master deed provides that a person who acquires an ownership interest has rights to her apartment as well as common elements, and therefore, plaintiffs hold "an interest therein" under MCL 37.1501(d). Accordingly, plaintiffs assert that the master deed and bylaws satisfy the real estate transaction definition. However, plaintiffs’ interpretation of the phrase "real estate transaction" is contrary to the plain language of MCL 37.1501(d). As noted, the last-antecedent rule provides that a modifying clause is confined to the last antecedent, but the modifying clause "an interest therein" is separated from the last antecedent by a comma and the word "or." The comma means that the last-antecedent rule does not apply in this case. See Campbell , 331 Mich. App. at 320, 952 N.W.2d 568. It also demonstrates that the modifying clause "an interest therein" "is not to be viewed as an independent clause operating separately but, rather, as part of the complex sentence overall." Id. (quotation marks and citation omitted). Therefore, pursuant to the rules of statutory interpretation, under MCL 37.1501(d), a "real estate transaction" means the (1) "sale ... of real property, or an interest therein," (2) "exchange ... of real property, or an interest therein," (3) "rental ... of real property, or an interest therein," or (4) "lease of real property, or an interest therein."
Plaintiffs rely on the following language: "Each person who shall acquire or own an Apartment in the Project (the ‘Co-owner’ thereof) shall have a particular and exclusive property right to his Apartment and to the limited common elements appurtenant thereto, and an undivided and inseparable right to share with other Co-owners the general common elements of the Project, as set forth in this Consolidating Master Deed."
Applying this interpretation of the definition of "real estate transaction" to this case, it is evident that plaintiffs do not have a cause of action under the PWDCRA. As stated earlier, plaintiffs raised a claim under MCL 37.1502(1)(b), which prohibits "[d]iscriminat[ion] against a person in the terms, conditions, or privileges of a real estate transaction or in the furnishing of facilities or services in connection with a real estate transaction." The Legislature did not define the phrase "in connection with," and this Court may consult a dictionary to determine the meaning of the phrase. See In re MJG , 320 Mich. App. 310, 326, 906 N.W.2d 815 (2017). Although there are many definitions for the word "connection," the definition relevant in this case is "relationship in fact." Merriam-Webster's Collegiate Dictionary (11th ed.). See also MJG , 320 Mich. App. at 326, 906 N.W.2d 815. In this case, the alleged discrimination did not have a relationship in fact with a real estate transaction because the alleged discrimination did not pertain to the (1) "sale ... of real property, or an interest therein," (2) "exchange ... of real property, or an interest therein," (3) "rental ... of real property, or an interest therein," or (4) "lease of real property, or an interest therein." MCL 37.1501(d). Additionally, defendants did not allegedly discriminate against the decedent "in the terms, conditions, or privileges of a" (1) "sale ... of real property, or an interest therein," (2) "exchange ... of real property, or an interest therein" (3) "rental ... of real property, or an interest therein," or (4) "lease of real property, or an interest therein." MCL 37.1502(1)(b) ; MCL 37.1501(d). Instead, the alleged discrimination occurred years after Terry purchased the home and after the decedent began residing in the home.
Plaintiffs also raised a claim in their complaint pursuant to MCL 37.1506a(1)(a), which prohibits certain discriminatory acts "in connection with a real estate transaction[.]" However, as stated earlier, the alleged discriminatory act did not have a relationship in fact with the (1) "sale ... of real property, or an interest therein," (2) "exchange ... of real property, or an interest therein," (3) "rental ... of real property, or an interest therein," or (4) "lease of real property, or an interest therein." MCL 37.1501(d). The alleged discriminatory act occurred years after Terry had purchased Unit 85 from Boulder Bluff Condominiums.
B. STATUTE AS A WHOLE AND COMPLETED TRANSACTIONS
Plaintiffs also contend that the statute must be examined as a whole and that limiting its protections to instances of sales or leases negates the remedial "value" of the PWDCRA and renders the statute meaningless or nugatory. However, it must be noted that defendants did not seek summary disposition of Count 3; plaintiffs claimed violation of MCL 559.147a of the Michigan Condominium Act. The following rules address statutes that relate to the same subject matter:
When two or more statutes arguably relate to the same subject or have the same purpose, the statutes are deemed in pari materia and must be read together in order to discern legislative intent. Measel v. Auto Club Group Ins. Co. , 314 Mich. App. 320, 329 n. 7, 886 N.W.2d 193 (2016). The purpose of the rule of in pari materia is to effectuate the legislative goal as evinced by the harmonious statutes on a particular subject. Id. "When two statutes are in pari materia but conflict with one another on a particular issue, the more specific statute must control over the more general statute." Donkers v. Kovach , 277 Mich. App. 366, 371, 745 N.W.2d 154 (2007). "It is ... well established that a later-enacted specific statute operates as an exception or a qualification to a more general prior statute covering the same
subject matter and that, if there is an irreconcilable conflict between two statutes, the later-enacted one will control." In re Midland Publishing Co., Inc. , 420 Mich. 148, 163, 362 N.W.2d 580 (1984). These are statutory-construction doctrines designed to discern the intent of the Legislature. [ House of Representatives v. Governor , 333 Mich.App. 325, 351, 960 N.W.2d 125 (2020).]
MCL 559.147a(1) addresses improvements or modifications pertaining to persons with disabilities and provides, in pertinent part:
A co-owner may make improvements or modifications to the co-owner's condominium unit, including improvements or modifications to common elements and to the route from the public way to the door of the co-owner's condominium unit, at his or her expense, if the purpose of the improvement or modification is to facilitate access to or movement within the unit for persons with disabilities
who reside in or regularly visit the unit, or to alleviate conditions that could be hazardous to persons with disabilities who reside in or regularly visit the unit.
Although plaintiffs urge this Court to extend the protections of the PWDCRA beyond the "sale, exchange, rental, or lease of real property, or an interest therein," MCL 37.1501(d), " ‘we are not at liberty to choose a construction that implements any rational purpose but, rather, must choose the construction which implements the legislative purpose perceived from the language and the context in which it is used.’ " Le Gassick v. Univ. of Mich. Regents , 330 Mich. App. at 495–496, 948 N.W.2d at 457, quoting Frost-Pack Distrib. Co. , 399 Mich. at 683, 252 N.W.2d 747. Moreover, provisions of the PWDCRA arguably overlap with MCL 559.147a(1) of the Michigan Condominium Act and must be read together to discern legislative intent. MCL 559.147a(1) expressly affords persons with disabilities the right to make improvements or modifications to facilitate access to or movement in the unit. It contains no express limitations or correlation to a "real estate transaction" or the timing of the sale or purchase. Thus, the Legislature's confinement of housing provisions in the PWDCRA to "real estate transactions" does not preclude subsequent legal action after a disabled person completes the real estate transaction in light of MCL 559.147a, and we will not extend the application of the PWDCRA beyond real estate transactions because it would serve the rationale purpose of protecting a disabled person.
To be clear, we do not address the merits of whether plaintiffs factually satisfy a claim pursuant to MCL 559.147a(1) or the application of that law to these facts.
Therefore, the trial court did not err by granting partial summary disposition in favor of defendants. Plaintiffs do not have any claims arising under the PWDCRA.
Affirmed. No taxable costs, a public question being involved.
Letica, P.J., and K. F. Kelly and Redford, JJ., concurred.