Jaclyn Shoshana Levine v. Briarwood Homeowners Assn of Okemos ( 2014 )

STATE OF MICHIGAN
COURT OF APPEALS
JACLYN SHOSHANA LEVINE, UNPUBLISHED
October 16, 2014
Plaintiff-Appellant,
v No. 317690
Ingham Circuit Court
BRIARWOOD HOMEOWNERS ASSOCIATION LC No. 12-001032-CZ
OF OKEMOS,
Defendant-Appellee.
Before: SAAD, P.J., and O’CONNELL and MURRAY, JJ.
PER CURIAM.
Plaintiff appeals the trial court’s order that did not grant her a declaratory judgment
against defendants. For the reasons stated below, we affirm.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff is a homeowner in the Briarwood subdivision in Okemos, and she owns a
German Sheppard. When the dog was a puppy, plaintiff sought defendant Briarwood
Homeowners Association’s (“Briarwood’s”) permission to build a fence outside her home so that
the dog would have a secure outdoor space. When Briarwood rejected her application to do so,1
plaintiff brought this action in the Ingham Circuit Court, and asked the court to, among other
things: (1) issue a declaratory judgment stating that her proposed fence was acceptable under
Briarwood’s restrictive covenants; and (2) enjoin Briarwood from interfering with its
construction.
1
Briarwood, however, failed to comply with its own restrictive covenants when it rejected
plaintiff’s application—the covenants state that Briarwood is required to answer an application
for architectural changes within 30 days of submission, and it failed to answer plaintiff’s
application within that time period.
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The trial court granted plaintiff partial summary disposition pursuant to MCR
2.116(C)(10),2 because defendant failed to respond to plaintiff’s fence building application
within 30 days, as required by defendant’s own restrictive covenants.3 However, the trial court
did not address whether plaintiff was entitled to a declaratory judgment stating that her proposed
fence was acceptable under Briarwood’s restrictive covenants. Accordingly, the trial court’s
ruling permitted plaintiff to build her fence, but did not grant the declaratory relief she sought.
On appeal, plaintiff argues that the trial court erred when it did not grant her request for a
declaratory judgment against Briarwood. Specifically, she asserts that a declaratory judgment is
necessary to protect her ability to build a fence because Briarwood has supposedly placed a
“moratorium” on all new fence construction.
II. STANDARD OF REVIEW
A trial court’s decision on a motion for summary disposition is reviewed de novo.
Maiden v Rozwood, 461 Mich. 109, 118; 597 NW2d 817, 823 (1999). When analyzing a motion
for summary disposition under MCR 2.116(C)(10), we “consider[] affidavits, pleadings,
depositions, admissions, and other evidence submitted by the parties . . . in the light most
favorable to the party opposing the motion. Where the proffered evidence fails to establish a
genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of
law.” Id. at 120.
III. ANALYSIS
As our Supreme Court recently stated, “it is well established that a court will not decide
moot issues. This is because it is the principle duty of [a] Court to decide actual cases and
controversies.” People v Richmond, 486 Mich. 29, 34; 782 NW2d 187 (2010) (internal citation
and quotation marks omitted), amended 784 NW2d 204 (2010). An issue “becomes moot when
an event occurs that renders it impossible for the reviewing court to grant relief.” CD Barnes
Assoc, Inc v Star Heaven, LLC, 300 Mich. App. 389, 406; 834 NW2d 878 (2013). Put another
way, courts do not review moot actions because doing so “would be a purposeless proceeding.”
Richmond, 486 Mich. at 35 (internal quotation marks omitted).
2
The trial court initially held that there was a genuine issue of material fact as to whether
defendant responded to plaintiff’s fence application within 30 days, as required by the
association’s covenants, but our Court held on appeal that this decision was based on a
misreading of the plain language of the covenants. Levine v Briarwood Homeowners Ass’n,
unpublished order of the Court of Appeals, April 28, 2013 (Docket No. 315363). The trial court
subsequently modified its holding on remand and ruled that defendant had failed to respond to
plaintiff’s fence application within 30 days—meaning that plaintiff’s fence complied with the
Association’s restrictive covenants and that she was free to build it.
3
Again, as mentioned in n 1, supra, Briarwood’s restrictive covenants require a committee or the
Association’s board of directors to approve or disapprove of proposed architectural changes to
neighborhood properties within 30 days of application.
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Here, plaintiff’s action is moot. The trial court effectively held that plaintiff’s planned
fence complied with Briarwood’s restrictive covenants because Briarwood did not respond to
plaintiff’s building application within 30 days. Moreover, plaintiff provides no evidence to
support her contention that Briarwood placed a “moratorium” on all new fence construction in
her community, beyond a notice on the association’s website that stated it would no longer
accept new applications for fence construction. There is no evidence in the record that
Briarwood has changed its restrictive covenants to bar fence construction, or that it has placed
any legal restrictions on its residents to prevent them from doing so. Even if Briarwood had
changed its restrictive covenants to bar new fence construction, plaintiff’s fence would not be
subject to that restriction, as the trial court already granted her the right to build her fence in its
partial grant of summary disposition.
Plaintiff is thus free to build the fence, making her action over whether she may build a
fence “a purposeless proceeding.” Richmond, 486 Mich. at 35. We cannot “grant [plaintiff]
relief” that she already possesses. CD Barnes Assoc, 300 Mich. App. at 406. Nor do we render
advisory opinions. Rozankovich v Kalamazoo Spring Corp (On Rehearing), 44 Mich. App. 426,
428; 205 NW2d 311 (1973). Plaintiff’s legal rights were properly vindicated at the trial court
and do not require any further vindication by our Court. In light of our holding, we need not
address defendant’s remaining issues, which are without merit.
Affirmed.
/s/ Henry William Saad
/s/ Peter D. O’Connell
/s/ Christopher M. Murray
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