Copperfield Villas Association v. Barry Tuer Jr ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
COPPERFIELD VILLAS ASSOCIATION, UNPUBLISHED
June 23, 2022
Plaintiff-Appellant,
v No. 356494
Livingston Circuit Court
BARRY TUER, JR., and ALLISON TUER, LC No. 18-030122-CH
Defendants-Appellees.
Before: GLEICHER, C.J., and SAWYER and GARRETT, JJ.
PER CURIAM.
In this condominium bylaw enforcement action, the Copperfield Villas Association (CVA)
alleged bylaw violations by Barry and Allison Tuer, owners of one of the association’s
condominiums. The parties reached a stipulated agreement settling the substantive claims but
could not agree regarding the amount of attorney fees owed. The trial court determined that the
association was entitled to $8,000 in attorney fees and costs. On appeal, the CVA challenges only
the award of fees and costs. Because the trial court erred by limiting the association’s award to
attorney fees incurred before its first appeal, we reverse and remand for the trial court to determine
the reasonable amount of attorney fees owed to the CVA for the entirety of the proceedings.
I. BACKGROUND
This is the second time that this case has come before this Court. See Copperfield Villas
Ass’n v Tuer, unpublished per curiam opinion of the Court of Appeals, issued May 21, 2020
(Docket No. 348518). In our previous decision, we described the allegations raised in the CVA’s
lawsuit:
Barry and Allison Tuer own a home in the Copperfield Villas site
condominium development. The Tuers completed construction and moved into
their home in early 2014. The CVA alleges that the Tuers violated the association
Bylaws on multiple occasions over the years by failing to weed and maintain the
lawn, parking their vehicles on the lawn, placing stones or gravel and a wooden
curb on a common area, and without prior approval constructing a fenced-in dog
kennel, expanding their driveway, and installing a parking lot. [Id. at 1.]
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During the initial trial court proceedings, the court granted summary disposition in favor of the
Tuers and dismissed the CVA’s complaint, concluding that the CVA had failed to obtain approval
of a majority of the condominium co-owners before filing its bylaw enforcement lawsuit. Id. at 6-
7. The CVA appealed, and we reversed and remanded for further proceedings, noting that on
remand the CVA could request attorney fees and costs under the Bylaws. Id. at 7 n 3.
On remand, the parties reached a settlement agreement in which the Tuers agreed to cure
most of the alleged bylaw violations, but the parties disputed the amount of attorney fees and costs
that the Tuers should pay CVA. The trial court indicated that it would award $8,000, which
represented the fees incurred only up to the time of the first appeal. The trial court reasoned that
the association did not need to pursue the first appeal, and therefore the Tuers should not be
required to pay any subsequent legal fees incurred by the CVA:
[U]sing all this, what I believed in the attorney fee calculation was that the
defendant did not have to pay attorney fees after the point which they agreed with
defendant [sic] on some of those issues that they took forward. So once the
defendant said I give [up] on these issues, there was no reason they have to keep
going on those issues up to the . . . higher court, and the defendant need not have
been charged for the cost incurred on litigating those issues.
* * *
[I]f the Court of Appeals looks at this, the real issue was . . . from the point at which
the defendant said you’re right, I give [up], on these issues, there was no need to
go forward on it, so to those issues, I’m not going to award . . . attorney fees.
[Emphasis added.]
The trial court’s award was far below that sought by the CVA, which amounted to more than
$20,000, because it did not include fees incurred during the first appeal or any proceedings
afterwards. The CVA now appeals, arguing that the trial court erroneously prohibited it from
recovering attorney fees incurred during all of the proceedings.
II. STANDARD OF REVIEW
We review an award of attorney fees for an abuse of discretion. Reed v Reed, 265 Mich
App 131, 164; 693 NW2d 825 (2005). An abuse of discretion occurs when the trial court’s
decision falls “outside the range of principled outcomes.” Edry v Adelman, 486 Mich 634, 639;
786 NW2d 567 (2010). “Condominium bylaws are interpreted according to the rules governing
the interpretation of a contract.” Tuscany Grove Ass’n v Peraino, 311 Mich App 389, 393; 875
NW2d 234 (2015). Questions involving contract interpretation, as well as statutory interpretation,
are reviewed de novo. Id. “De novo review means that we review the legal issue independently”
and without deference to the trial court. Wright v Genesee Co, 504 Mich 410, 417; 934 NW2d
805 (2019).
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III. ATTORNEY FEES AND COSTS
CVA argues that the trial court erred by ruling that it could recover attorney fees only for
those proceedings that occurred before the first appeal.1
This case involves the proper interpretation of the Condominium Act, MCL 559.101 et
seq., and the CVA’s Bylaws. “When interpreting a statute, we must ascertain the Legislature’s
intent,” which is accomplished “by giving the words selected by the Legislature their plain and
ordinary meanings, and by enforcing the statute as written.” Griffin v Griffin, 323 Mich App 110,
120; 916 NW2d 292 (2018) (quotation marks and citation omitted). If a statute is unambiguous,
it must be applied as plainly written. McQueer v Perfect Fence Co, 502 Mich 276, 286; 971 NW2d
584 (2018). Similarly, the words of condominium bylaws “are interpreted according to their plain
and ordinary meaning,” giving effect to “every word, phrase, and clause.” Tuscany Grove Ass’n,
311 Mich App at 393.
MCL 559.206(b) of the Condominium Act provides:
In a proceeding arising because of an alleged default by a co-owner, the
association of co-owners or the co-owner, if successful, shall recover the costs of
the proceeding and reasonable attorney fees, as determined by the court, to the
extent the condominium documents expressly so provide. [(Emphasis added).]
The condominium documents governing this dispute—the CVA’s Bylaws—expressly allow for
the recovery of attorney fees and costs, using language drawn from the Condominium Act. Article
XIX, Section 2 of the Bylaws states:
In any proceeding arising because of an alleged default by any Co-owner,
the Association, if successful, shall be entitled to recover the costs of the proceeding
and such reasonable attorney fees (not limited to statutory fees) as may be
determined by the court, but in no event shall any Co-owner be entitled to recover
such attorney fees. [(Emphasis added).]
Regarding the award of attorney fees, Michigan follows the “American Rule,” which states
that “attorney fees are not recoverable as an element of costs or damages unless expressly allowed
by statute, court rule, common-law exception, or contract.” Reed, 265 Mich App at 164 (quotation
marks omitted). “Parties can contract for the payment of attorney fees, and contractual provisions
1
The CVA did not waive this issue for our review. “A waiver consists of the intentional
relinquishment or abandonment of a known right.” Patel v Patel, 324 Mich App 631, 634; 922
NW2d 647 (2018). Before entry of the final judgment, the parties indicated in their filings that
they had stipulated to a settlement of all issues except for attorney fees owed, and that the issue of
attorney fees was left for judicial adjudication. The CVA also objected to the Tuers’s proposed
judgment and requested that the trial court place the reasoning for its $8,000 attorney fee
determination on the record. The CVA did not affirmatively express agreement with the amount
or reasonableness of the award. Rather, its objection was necessary to provide a record of the trial
court’s rationale for this appeal.
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for the payment of reasonable attorney fees are judicially enforceable.” Talmer Bank & Trust v
Parikh, 304 Mich App 373, 403; 848 NW2d 408 (2014), vacated in part on other grounds 497
Mich 857 (2014). Furthermore, “[a] contractual provision for reasonable attorney fees in enforcing
provisions of [a] contract may validly include allowance for services rendered upon appeal.” Id.(quotation marks and citation omitted; second alteration in original).
The trial court erroneously determined that the CVA could recover attorney fees for only
a portion of the proceedings in this litigation. The trial court gave no legal basis for its rationale,
and the Tuers provide none on appeal. The CVA was entitled to recover fees and costs for all
aspects of the proceedings. MCL 559.206(b) provides that the CVA shall recover attorney fees
and costs according to the relevant condominium documents, and the Bylaws expressly provide
that the CVA may recover the fees and costs for any proceeding arising from an alleged bylaw
violation. “Proceeding” includes an appeal from a lower court decision. See Black’s Law
Dictionary (11th ed) (defining “proceeding” as “all the steps taken or measures adopted in the
prosecution or defense of an action,” such as “the taking of the appeal or writ of error”). By using
the phrase “any proceeding,” the Bylaws unambiguously authorize the recovery of attorney fees
and costs incurred pursuing an appeal “arising because of an alleged default by any Co-owner.”
The allowable recovery under the Bylaws also includes the attorney fees incurred during the
parties’ subsequent litigation leading to the settlement agreement. By concluding otherwise, the
trial court erroneously restricted the CVA’s ability to obtain reasonable attorney fees and costs that
the Bylaws plainly authorized.
Further, the trial court’s rationale improperly punishes the CVA for pursuing its rights on
appeal. Before the CVA’s first appeal, the parties had engaged in settlement discussions, and the
Tuers had offered to cure the alleged bylaw violations without conceding any wrongdoing.
However, the parties were unable to reach a settlement because they could not agree on attorney
fees or costs, and the CVA had no obligation to accept a settlement that did not meet its full desires.
It is immaterial to the determination of attorney fees that the parties had agreed before the first
appeal on every issue except attorney fees and costs. See Lavene v Winnebago Indus, 266 Mich
App 470, 472, 480-481; 702 NW2d 652 (2005) (holding that attorney fees, including appellate
fees, could be awarded to the plaintiffs in the context of a settlement agreement in which the parties
agreed to every other issue except the attorney fees). Therefore, the trial court’s ruling limiting
the award of attorney fees to only the litigation before the first appeal would have a chilling effect
on parties who choose to litigate rather than accept a less favorable settlement offer.
Also, this case was initially dismissed by the trial court, and it was the CVA’s appeal that
resulted in a decision in its favor and a reversal. See Copperfield Villas Ass’n, unpub op at 1. The
trial court’s decision erroneously dismissed the CVA’s complaint on the basis that the CVA failed
to secure approval of a majority of the condominium co-owners before filing suit, when no such
requirement applied to bylaw enforcement actions. Had the CVA declined to pursue an appeal of
this order, it could have had adverse future consequences for the CVA’s bylaw enforcement
authority. As the CVA explains, the trial court’s decision “if left unchallenged, would serve as
precedent (within the Association at least) undermining the Association’s ability to enforce its
Bylaws without holding a Co-owner vote.” By filing an appeal, the CVA was protecting and
litigating its rights. Accordingly, the CVA had every reason to seek an appeal and incur additional
costs in order to avoid such a result.
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The Tuers’s primary argument is that, because the alleged violation issues were settled
between the parties, the CVA was not “successful” for purposes of either MCL 559.206(b) or the
Bylaws. In other words, according to the Tuers, a party cannot be successful when they settle and
the other party does not admit culpability. As an initial matter, the Tuers’s argument is internally
inconsistent. If the CVA was truly not “successful” in its bylaw enforcement action, then it would
not have been entitled to any attorney fees and costs under the Condominium Act or the Bylaws.
However, the Tuers do not challenge the trial court’s award of $8,000 in attorney fees and costs.
Regardless, the Tuers’s argument that the CVA was not “successful” lacks merit. The term
“successful” is undefined by both the Condominium Act and the Bylaws. Therefore, we may
consult a dictionary for both the statute, In re Erwin Estate, 503 Mich 1, 9-10; 921 NW2d 308
(2018), and the bylaws, see Hastings Mut Ins Co v Safety King, Inc, 286 Mich App 287, 294; 778
NW2d 275 (2009). “Successful” can be defined as “resulting or terminating in success” or
“gaining or having gained success.” Merriam-Webster’s Collegiate Dictionary (11th ed).
“Success” can be defined as a “favorable or desired outcome.” Id. Therefore, in order for the
CVA to be “successful,” the settlement must have resulted in a favorable or desired outcome.
The factual record demonstrates that the CVA obtained a favorable or desired outcome.
The CVA sought an injunction against the Tuers for various alleged violations of the Bylaws,
including “failing to weed and maintain the lawn, parking their vehicles on the lawn, placing stones
or gravel and a wooden curb on a common area, and without prior approval constructing a fenced-
in dog kennel, expanding their driveway, and installing a parking lot.” See Copperfield Villas
Ass’n, unpub op at 1. An examination of the final order shows that, except for the dog kennel,
each of these concerns was addressed and resolved in the CVA’s favor. The CVA obtained a
favorable or desirable outcome because it generally secured the relief that it sought in its complaint.
The trial court’s final judgment even provided in part, “MCL 559.206(b) requires the recovery of
reasonable attorney fees, as determined by the Court, when as here Plaintiff is successful.”
(Emphasis added.) Therefore, the CVA was “successful” in this lawsuit and is entitled to recover
reasonable attorney fees and costs under MCL 559.206(b) and the association Bylaws. See
Windemere Commons I Ass’n v O’Brien, 269 Mich App 681, 684; 713 NW2d 814 (2006).
In sum, the trial court erred by determining that the CVA was only entitled to attorney fees
and costs incurred before the first appeal. The Bylaws allow the CVA to recover reasonable
attorney fees and costs incurred in any proceeding to resolve the Tuers’s alleged bylaw violations.
Accordingly, we reverse and remand this matter to the trial court for a determination of the
reasonable attorney fees and costs owed to the CVA. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ David H. Sawyer
/s/ Kristina Robinson Garrett
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