Beach Forest Subdivision Inc v. Mr Omran ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
BEACH FOREST SUBDIVISION UNPUBLISHED
ASSOCIATION, INC., November 1, 2016
Plaintiff-Appellee,
v No. 326976
Oakland Circuit Court
MR. AND MRS. OMRAN, LC No. 2011-120340-CK
Defendants,
and
DR. EIAD OMRAN,
Defendant-Appellant.
Before: GADOLA, P.J., and WILDER and METER, JJ.
PER CURIAM.
Defendant Dr. Eiad Omran (“defendant”) appeals as of right an order granting plaintiff’s
motion for summary disposition with respect to plaintiff’s breach-of-contract claim in this case
involving the installation of lawn ornament fountains in violation of a deed restriction.
Defendant concurrently challenges an award of attorney fees to plaintiff. We affirm.
This Court reviews summary disposition decisions, contract interpretation, and the
interpretation of restrictive covenants de novo. AFT Michigan v State, 497 Mich. 197, 208; 866
NW2d 782 (2015); Terrien v Zwit, 467 Mich. 56, 60-61; 648 NW2d 602 (2002).
Defendant argues that the trial court erred in granting summary disposition to plaintiff
because plaintiff waived the lawn ornament deed restriction when it failed to enforce the
restriction against all landowners in its subdivision.
Occasional violations of a deed restriction in one area of a development do not preclude
the developer from enforcing those restrictions in other areas, particularly if one violation is of a
more serious and damaging degree than another. Bloomfield Estates Improvement Ass’n, Inc v
City of Birmingham, 479 Mich. 206, 219; 737 NW2d 670 (2007); Taylor Avenue Improvement
Ass’n v Detroit Trust Co, 283 Mich. 304, 311; 278 N.W. 75 (1938). Waiver might occur if
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unaddressed violations effectively destroy the purpose of the deed restriction. See O’Connor v
Resort Custom Builders, Inc, 459 Mich. 335, 346; 591 NW2d 216 (1999).
To survive a motion for summary disposition under MCR 2.116(C)(10), the opposing
party must identify a disputed issue and support that issue with independent evidence. See
Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich. App. 264,
292-293; 769 NW2d 234 (2009). Here, defendant did not offer adequate evidence that other
alleged violations were conceivably as serious or damaging to the subdivision as his fountains.
Indeed, we note that the other ornaments were of a “lower profile.” Defendant also failed to
offer evidence to support the contention that these other, allegedly unenforced violations “altered
the character of the . . . subdivision to an extent that would defeat the original purpose of the
restrictions.” O’Connor, 459 Mich. at 346. We find no basis for reversal.
Defendant next argues that his violation of the deed restrictions was nominal or technical
and should have been disregarded. We do not agree. Restrictive covenants pertaining to
aesthetic characteristics have long been enforced by this Court, and failure to enforce such
covenants would be unjust. Rofe v Robinson, 126 Mich. App. 151, 157; 336 NW2d 778 (1983);
Bloomfield Estates, 479 Mich. at 214.
While it is true that “technical violations” are equitable exceptions to the general rule that
residential deed restrictions must be enforced, Webb v Smith, 224 Mich. App. 203, 211; 568
NW2d 378 (1997), this exception only applies if the trial court finds that the violation does not
detract from the objects and purposes of the general scheme of development, id. at 212. Here, it
is apparent from the terms of the deed at issue that aesthetic quality and uniformity are among
the objects and purposes of this subdivision’s general scheme of development. This case is
similar to Webb, in which this Court rejected defendants’ argument that a deed violation was
technical and unenforceable when their violation “detracted from the . . . aesthetic enjoyment
[of] the subdivision’s landowners.” Id. Plaintiff acted reasonably.
Defendant next argues that the trial court erred in granting summary disposition to
plaintiff because the deed restrictions do not specifically prohibit fountains. This argument is
untenable. The provision at issue refers to “lawn ornaments, sculptures or statutes . . . .” Simply
because defendant’s large ornaments included water as an element did not exclude them from
being ornaments, sculptures, or statues. Our review of the photographs shows that the trial court
correctly characterized the fountains as “statues” or “fountain statues” for the purposes of this
case.1
Defendant next argues that the trial court had no authority to grant injunctive relief.
Defendant argues that because plaintiff attempted to levy a fine, plaintiff may not now change
tactics and pursue equitable relief merely because it was not able to collect the fine. This
argument is without merit. Article VI of the deed restrictions clearly permits plaintiff to prevent
or abate any violation and to recover “damages or other dues for any violation.” In addition,
1
In fact, in his reply brief, defendant refers to the fountains as “lawn ornaments.”
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defendant’s argument that plaintiff came to the controversy with “unclean hands” is untenable
because plaintiff did not act illegally or unreasonably.2
Defendant lastly argues that the trial court erred in awarding attorney fees to plaintiff.
Although it is not routine for a court to award attorney fees, in light of the “American rule” noted
by the Supreme Court in Haliw v City of Sterling Heights, 471 Mich. 700, 706-707; 691 NW2d
75 (2005), the trial court here did not err in awarding attorney fees to plaintiff for costs incurred
in enforcing its lawn ornament deed restriction. One exception to the “American rule” regarding
attorney fees is a contractual agreement between parties to pay reasonable attorney fees upon
breach of contract. See Village of Hickory Pointe Homeowners Association v Smyk, 262 Mich
App 512, 517; 686 NW2d 506 (2004), and Sentry Ins v Lardner Elevator Co, 153 Mich. App. 317,
326; 395 NW2d 31 (1986). The trial court considered plaintiff’s motion for attorney fees and
defendant’s response, and looking to the language of the deed, found that plaintiff was entitled to
an award. The deed expressly provides that “the Association may recover against a Lot Owner
violating the provisions of this Declaration all reasonable costs incurred by him in enforcing such
provisions in any of the foregoing ways, . . . including reasonable attorneys fees . . . .” The court
subsequently considered defendant’s specific objections to the award and reduced it to reflect the
objections sustained, displaying a calculated, rational approach to its discretionary decision.
With regard to defendant’s argument that the trial court could not award attorney fees
because defendant believed in good faith that he was entitled to resist the fine imposed by
plaintiff and the injunction, this contention does not change the clear language of the
enforcement provision of the deed granting plaintiff the right to recover attorney fees. In the
case cited by defendant, Newport West Condo Ass’n v Veniar, 134 Mich. App. 1, 17; 350 NW2d
818 (1984), the defendant landowners breached their contract by failing to pay a condominium
assessment fee. This Court found that the defendants’ actions were an attempt to “ensure the
fiscal integrity of the project[, and the actions] benefitted the other members of their
community.” Id. The trial court made no such observation here. Reversal is unwarranted.
Affirmed.
/s/ Michael F. Gadola
/s/ Kurtis T. Wilder
/s/ Patrick M. Meter
2
We also note that defendant did not cite authority in support of his “unclean hands” argument
until he filed his reply brief. See Wilson v Taylor, 457 Mich. 232, 243; 577 NW2d 100 (1998)
(noting that an appellant must cite authority to support his position).
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