Dearborn Hills Civic Association Inc v. Malik Merhi ( 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
DEARBORN HILLS CIVIC ASSOCIATION, INC., UNPUBLISHED
April 28, 2022
Plaintiff-Appellee,
v No. 354905
Wayne Circuit Court
MALIK MERHI and RANA MERHI, LC No. 18-016180-CH
Defendants-Appellants.
Before: LETICA, P.J., and REDFORD and RICK, JJ.
PER CURIAM.
In this dispute over the application of restrictive covenants to a residential home,
defendants, Malik Merhi and Rana Merhi (the Merhis), appeal by right the trial court’s orders
compelling them to remove a fence from their property and to replace stone siding that they
installed on the exterior of their home. On appeal, the Merhis argue that questions of fact precluded
the trial court from granting plaintiff, Dearborn Hills Civic Association, Inc.’s (the Association)
motion for summary disposition. The Merhis also argue that the trial court erred when it denied
their motion for reconsideration of its decision to enter the Association’s proposed order because
it included relief that was not supported by the trial court’s oral ruling. For the reasons explained,
we affirm the trial court’s grant of the Association’s motions for summary disposition and
reconsideration, but vacate the June 26, 2020 order and remand for entry of a new order that
comports with the trial court’s oral ruling.
I. FACTUAL BACKGROUND
The Merhis purchased their home located within the Association in 2013 under a land
contract. In 2016, the seller transferred title to the property by a warranty deed that expressly
provided that the conveyed property is subject to any existing building and use restrictions.
The original owners of lots in the Dearborn Hills subdivisions agreed to restrictive
covenants set forth in a Declaration of Restrictions (the Restrictions) which limit the development
and alteration of properties within the subdivisions and assigned the Association the right to
approve or disapprove plans for development or renovation of properties. The Restrictions
provided that they shall run with the land and could be extended by the agreement of the owners
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of 65% of the area of the land subject to the original restrictions. The owners duly extended the
Restrictions in 1999 through 2049 and recorded the Restrictions in the county register of deeds.
Article II of the Restrictions requires landowners to obtain the Association’s approval in
writing of the plans’ conformity and harmony of the external design with existing structures within
the subdivision before they erect or alter any building on the properties in the subdivision. Article
X of the Restrictions precludes property owners from erecting fencing in front of the building line
and allows only four-foot tall fences in the back of the building line “not constructed of solid board,
and of such a character as not to obstruct the view.”
In 2013, the Merhis erected fencing in their backyard. They also altered the facade of their
home by installing stone siding on its exterior face in 2018. The Merhis did not submit any plans
for their alterations for approval from the Association.
On September 8, 2018, the Association sent the Merhis a letter informing them that they
violated the Restrictions by commencing a facade renovation without first submitting their plans
to the Association for approval. The Association advised the Merhis that the stone facade they
were erecting was nonconforming and would not be approved, and directed them to halt the
renovation. The Association noted as well that the Merhis had installed a fence that violated the
Restrictions. The Association asked the Merhis to remove the stone siding and fence. The record
indicates that the City of Dearborn requires residents to submit a renovation permit application
and obtain a permit for exterior facade renovations. The City’s residential renovation information
included with such applications states that if one’s property is located within the Association, the
Association’s approval is required. The Merhis started their facade alteration project before
seeking such a permit and after the Association notified them of their project’s nonconformity.
The record indicates that they applied for a permit on September 24, 2018, and the City issued
them a renovation permit on December 3, 2018.1
The Association offered to work with the Merhis on bringing the home into compliance
with the Restrictions. However, after the Merhis failed to follow the Association’s instructions,
the Association sued the Merhis on December 21, 2018, to enforce the Restrictions. The Merhis’s
lawyer filed an answer in May 2019 on behalf of Malik but not Rana. The Association requested
and obtained the entry of a default against Rana by the court clerk. The Association moved for
entry of a default judgment against Rana who never took steps to have the default set aside and
also moved for summary disposition against the Merhis under MCR 2.116(C)(10) in November
2019.
In support of its summary disposition motion, the Association argued that the undisputed
evidence showed that the Merhis’s home was part of the subdivision and subject to the Restrictions
which were validly promulgated. The Association asserted that the Merhis plainly violated the
Restrictions by failing to submit their plans for renovation to the Association. It maintained that
none of the approximately 1,250 homes within the subdivision featured a modern stone facade
design like the Merhis installed on their home. The Association submitted photographs of
numerous homes within the subdivision for comparison with images of the Merhis’s home. The
1
The City did not issue its final approval of the façade renovation until August 2019.
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Association argued that the evidence established that the Merhis violated the Restrictions’ Article
II by installing stone siding not in conformity and harmony with the external design of existing
homes in the subdivision. The Association also argued that the undisputed evidence established
that the Merhis’s fence exceeded the four-foot height restriction and its solid design obstructed the
view which violated the Restrictions.
At the conclusion of the summary disposition motion hearing, the trial court ruled that the
Merhis violated the restriction governing fences. Concerning the stone facade, the court stated
that it was not “crystal clear about the stone,” so it denied the motion. The trial court entered an
order granting the Association summary disposition as to the fencing and ordered the Merhis to
bring their fences into compliance with the Restrictions by June 30, 2020. The order, however,
denied the Association summary disposition as to the stone facade and granted the Merhis’s
summary disposition on that issue. It then closed the case.2
The Association timely moved for reconsideration on two grounds: (1) that the trial court
lacked the authority to grant summary disposition in favor of Rana because she defaulted and a
default judgment should have been entered against her; and (2) that the trial court committed a
palpable error when it rejected the Association’s authority to decide whether the stone facade was
in conformity and harmony with the existing structures’ exterior designs within the subdivision.
The Association asked the trial court to reconsider its order and enter an order granting the
Association’s motion for summary disposition.
The trial court held a hearing on the motion for reconsideration. The court took the parties’
appearances and then informed them that it reconsidered its previous ruling on the fence and facade
issues and announced that “on reconsideration the Court is granting [the Association’s] motion on
both issues.” The court ruled that the Mehris would have to change the facade and fence and
directed the Association to submit an order. Defense counsel remarked that he had not filed a
response, the Association presented nothing new, and he did not see the palpable error. The trial
court responded that it had the option to change its ruling at any time.
The Association submitted a proposed order under the seven-day rule, MCR 2.602(B)(3),
which granted the Association’s motion for reconsideration and motion for summary disposition,
and provided for the entry of a default judgment against Rana. The Merhis objected to the entry
of the order. The trial court denied the Merhis’s objections and entered the Association’s proposed
order on June 26, 2020. The Merhis moved for reconsideration and the trial court denied their
motion. The Merhis now appeal.
II. STANDARDS OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition. Barnard
Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 618
(2009). We review de novo the trial court’s interpretation and application of restrictive covenants.
Conlin v Upton, 313 Mich App 243, 254; 881 NW2d 511 (2015). We also review de novo whether
2
The trial court entered a separate order denying as moot the Association’s motion for entry of
default judgment against Rana.
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the trial court properly applied the common law applicable to covenants and equity. Id. Restrictive
covenants are contracts. Bloomfield Estates Improvement Ass’n, Inc v City of Birmingham, 479
Mich 206, 214; 737 NW2d 670 (2007). “[T]he main goal in the interpretation of contracts is to
honor the intent of the parties.” Mahnick v Bell Co, 256 Mich App 154, 158-159; 662 NW2d 830
(2003). We review unpreserved claims for plain error. Kern v Blethen-Coluni, 240 Mich App
333, 336; 612 NW2d 838 (2000).
A motion under MCR 2.116(C)(10) tests the factual sufficiency of claims and the moving
party bears the burden of establishing with admissible evidence its entitlement to judgment as a
matter of law. Lear Corp v Dep’t of Treasury, 299 Mich App 533, 536; 831 NW2d 255 (2013).
If the nonmoving party fails to establish the existence of a genuine issue of material fact, the trial
court must enter judgment for the moving party as a matter of law. Id. at 537. “A genuine issue
of material fact exists when, viewing the record in the light most favorable to the nonmoving party,
reasonable minds could differ on an issue.” Id. A trial court’s grant of summary disposition under
MCR 2.116(C)(10) is proper when the evidence, “viewed in the light most favorable to the
nonmoving party, show[s] that there is no genuine issue as to any material fact and the moving
party is therefore entitled to judgment as a matter of law.” Lowrey v LMPS & LMPJ, Inc, 500
Mich 1, 5; 890 NW2d 344 (2016). A trial court properly grants a motion for summary disposition
when the moving party establishes that, except for the amount of damages, there is no genuine
issue as to any material fact. See Barnard Mfg, 285 Mich App at 369. The moving party has the
initial burden to identify the issues about which there is no genuine issue of material fact with
supporting evidence. Id. at 369-370. If the moving party properly supports the motion, the
nonmoving party must present evidence that demonstrates that a factual dispute remains that must
be resolved by the finder of fact; if the nonmoving party fails to do so, the trial court must grant
the moving party’s motion. Id. at 370. The nonmoving party may not rely on mere allegations or
denials to establish a question of fact but present evidence that establishes a genuine issue for trial.
Id. at 374. “A genuine issue of material fact exists when the record, giving the benefit of
reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might
differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
III. ANALYSIS
A. SUMMARY DISPOSITION OF CLAIMS IN EQUITY
The Merhis raise several claims of error involving the trial court’s decision to grant the
Association’s motion for summary disposition.3 The Merhis argue that the trial court erred when
it granted the Association’s motion for summary disposition because enforcement of restrictions
3
The Association correctly notes that the Merhis have identified grounds for denying the
Association’s motion for summary disposition that they did not raise in the trial court. Because
they did not raise those grounds in the trial court, they were unpreserved. See Glasker-Davis v
Auvenshine, 333 Mich App 222, 227; 964 NW2d 809 (2020). Nevertheless, this Court has the
discretion to review unpreserved claims. See Smith v Foerster-Bolser Constr, Inc, 269 Mich App
424, 427; 711 NW2d 421 (2006). Although this Court will exercise its discretion to review
unpreserved claims in a civil case sparingly, see Napier v Jacobs, 429 Mich 222, 233-234; 414
NW2d 862 (1987), in the interests of finality, we elect to address each claim of error.
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involve equity which they claim always involves questions of fact precluding summary
disposition. We disagree.
In this case, the Association sued to enforce restrictive covenants. In Bloomfield Estates,
479 Mich at 214; (citations, quotation marks, and brackets omitted), our Supreme Court explained:
Because of this Court’s regard for parties’ freedom to contract, we have
consistently supported the right of property owners to create and enforce covenants
affecting their own property. Such deed restrictions generally constitute a property
right of distinct worth. Deed restrictions preserve not only monetary value, but
aesthetic characteristics considered to be essential constituents of a family
environment. If a deed restriction is unambiguous, we will enforce that deed
restriction as written unless the restriction contravenes law or public policy, or has
been waived by acquiescence to prior violations, because enforcement of such
restrictions grants the people of Michigan the freedom freely to arrange their affairs
by the formation of contracts to determine the use of land. Such contracts allow
the parties to preserve desired aesthetic or other characteristics in a neighborhood,
which the parties may consider valuable for raising a family, conserving monetary
value, or other reasons particular to the parties.
A restrictive covenant is a contractual agreement limiting the use of property to enhance
the value of the affected properties. Conlin, 313 Mich App at 255-256. For that reason, a suit to
enforce a restrictive covenant is in essence a claim for breach of contract. Thiel v Goyings, 504
Mich 484, 495; 939 NW2d 152 (2019). The proper interpretation of a contract is normally a
question of law for the court unless the terms of the agreement are equally susceptible to more than
one interpretation or irreconcilably conflict with other provisions of the agreement. Coates v
Bastian Bros, Inc, 276 Mich App 498, 503-504; 741 NW2d 539 (2007). When the only question
involves the proper application of an unambiguous contract, summary disposition is appropriate.
Mueller v Frankenmuth Mut Ins Co, 184 Mich App 669, 671; 459 NW2d 95 (1990).
The characteristics of the Merhis’s fence and stone facade could be established by
documentary evidence or testimony; as such, whether the fence and siding violated the restrictive
covenants constituted a matter that could readily be tested on a motion for summary disposition.
See Franks v Franks, 330 Mich App 69, 91; 944 NW2d 388 (2019) (noting that most claims
usually involve elements that can be tested on a motion for summary disposition). The
Association’s complaint sought injunctive relief which is an equitable remedy. See Redmond v
Heller, 332 Mich App 415, 439; 957 NW2d 357 (2020). The Merhis argue that in Sun Oil Co v
Trent Auto Wash, Inc, 379 Mich 182, 191; 150 NW2d 818 (1967), our Supreme Court created a
categorical rule barring the grant of summary disposition whenever equity is involved. Although
there may be occasions when questions of fact exist that implicate the trial court’s ability to fashion
an appropriate decree in equity, precluding summary disposition, this Court rejected the argument
that Sun Oil Co held that summary disposition is never appropriate in cases involving equity.
Franks, 330 Mich App at 91. This Court explained that claims involving equity may be tested on
a motion for summary disposition like any other claim, and summary disposition may be granted
unless the nonmoving party demonstrates that genuine issues exist that must be decided by the
finder of fact. Id. at 91-92. Summary disposition, therefore, is appropriate in cases with
undisputed facts that demonstrate that the moving party is entitled to injunctive relief. Id. at 92.
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In this case, the parties did not dispute the underlying facts regarding the fence and stone
facade installed by the Merhis. The trial court, therefore, had the authority to grant the
Association’s motion for summary disposition if the undisputed evidence established that the
Restrictions applied to the Merhis’s property, the fence and stone facade installation violated the
Restrictions, and the Merhis failed to establish defenses to the application of the Restrictions to
their property. In other words, if the Association proved its case and the Merhis failed to establish
the existence of a genuine issue of material fact, the Association would be entitled to injunctive
relief as a matter of law.
B. DUTY TO SUBMIT PLANS
The Merhis assert that the Restrictions did not apply to them or their property because they
did not have actual knowledge of the Restrictions. They argue further that, even if the Restrictions
applied, they had no duty to submit their plans for renovation to the Association. They contend
that the Restrictions provide that a property owner has no duty to submit plans under those
situations when the property owner manages to complete the renovation before the Association
sues to enjoin it. They further maintain that, even if they had to submit their plans, any violation
was merely technical and that the trial court erred when it failed to consider that fact when
resolving the Association’s motion for summary disposition. Each of these arguments is
completely without merit.
Michigan courts generally enforce deed restrictions out of regard for the parties’ freedom
to contractually create covenants affecting property. See Bloomfield Estates, 479 Mich at 214.
Although courts strictly construe ambiguous deed restrictions in favor of the free use of property,
courts will enforce unambiguous deed restrictions as written. Thiel, 504 Mich at 496-497. When
a term has not been defined by the parties, courts will give the terms their commonly used
meanings. Bloomfield Estates, 479 Mich at 215.
In Thiel, our Supreme Court explained:
Courts review restrictive covenants with a special focus on determining the
restrictor’s intent. We are not so much concerned with the rules of syntax or the
strict letter of the words used as we are in arriving at the intention of the restrictor,
if that can be gathered from the entire language of the instrument. We determine
the intended meaning of the chosen language by reading the covenants as a whole
rather than from isolated words and must construe the language with reference to
the present and prospective use of property. And we enforce unambiguous
restrictions as written. Thus, we consider challenges to restrictive covenants in a
contextualized, case-by-case manner. [Thiel, 504 Mich at 496 (quotation marks,
alterations, and citations omitted).]
In its motion for summary disposition, the Association presented evidence that the Merhis’s
predecessor in interest had agreed to the extension of the Restrictions in 1999 and that the
Restrictions had been properly recorded in the county register of deeds. The Restrictions,
therefore, applied to and ran with the Merhis’s land in the Association subdivision. The evidence
that the Restrictions had been extended and recorded in 1999, which the Merhis left unrebutted,
established that, as a matter of law, the Merhis had at a minimum constructive notice of the
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Restrictions and were bound by them as covenants that ran with their land. Conlin, 313 Mich App
at 260 (stating that a subsequent purchaser of land is bound by covenants if he or she has actual or
constructive notice of the covenants and relating that a purchaser has constructive notice when the
covenants appear in his or her chain of title). Whether the Merhis’s had actual knowledge of the
Restrictions is not dispositive. Their argument that the Restrictions did not apply to them and their
property because they lacked actual knowledge fails as a matter of law. Acceptance of the
argument would turn on its head the essential principles of Michigan’s race-notice property law.
The Merhis also could not rely on approval by the City of Dearborn of their renovation
projects to avoid their obligations under the Restrictions. The Restrictions established contractual
obligations that a municipality cannot impair through its ordinances. See Phillips v Lawler, 259
Mich 567, 570-571; 244 NW 165 (1932). As the Association correctly submits, deed restrictions
involve obligations that are separate from a municipality’s authority to regulate property, and both
the Restrictions and the municipality’s ordinances may be enforced. See Rofe v Robinson, 415
Mich 345, 351-352; 329 NW2d 704 (1982).
Under Article II of the Restrictions, the Merhis were prohibited from erecting, placing, or
altering their property unless and until the Association or its representative approved in writing
their plans. Article II provides in relevant part:
No building shall be . . . altered on any building lot or parcel in said subdivisions
until the building plans, specifications, and plot plan . . . have been approved in
writing by the [Association] or by a representative designated by said Association
for conformity and harmony of external design with existing structures in said
subdivisions and with the hereinafter mentioned restrictive covenants . . . . If the
aforesaid Association or its designated representative fails to approve or disapprove
such design and location within 30 days after the plans have been submitted to said
Association or its designated representative, or if no suit to enjoin the erection of
such building or the making of such alterations has been commenced prior to the
completion thereof, such approval will not be required.
For the first time on appeal, the Merhis contend that they did not need to get approval for
their exterior improvements under Article II because the Association did not file suit to enjoin
them from making the improvements before they contend that they may have completed the
improvements. The Merhis maintain that an approval exception applies whenever a homeowner
manages to complete his or her improvements before the Association sues to enforce the
Restrictions, even if the homeowner never submitted any plans to the Association. This argument
lacks any merit.
Article II expressly prohibits the erection, placement, or alteration of a lot without the
Association’s prior written approval of the plans which must meet certain criteria. Under the plain
language of the Restrictions, if property owners desire to alter their house’s exterior design, they
must first submit their plans to the Association. Once submitted, property owners may not
commence work unless and until they obtain approval from the Association or its representative.
If, however, within 30 days of submission of the request for approval the Association has neither
approved nor disapproved and a suit to enjoin the alteration has not been filed, only then is approval
not required.
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Article II does not support the Merhis’s contention that an owner may proceed with
alteration without first submitting the plans for approval. Article II sets forth three contractual
duties. First, owners must submit their alteration plans; second, they must obtain the Association’s
approval of such plans; and third, their alteration must be in “conformity and harmony of external
design with existing structures in the subdivision.” The plan submission and approval requirement
do not become unenforceable and irrelevant if “no suit to enjoin” the renovation is filed before the
homeowner completes the renovation. Property owners cannot evade their contractual obligations
by breaching their first contractual obligation, the submission of their plan, and then breach the
second contractual obligation, the obtaining of prior written approval before commencement of
the work, and also breach the conformity and harmony obligation, by merely finishing the project
before being sued. Article II must be read in context and must be harmonized with the other
provisions set forth in the Restrictions. See Thiel, 504 Mich at 496, 501. A plain reading of the
requirements makes it immediately clear that the Mehris’s interpretation lacks validity because it
renders meaningless the very obligations to which all subdivision property owners are bound.
Read as the Merhis contend, the restrictors intended that the Restrictions applied only to those who
were willing to engage in the approval process. The Merhis’s interpretation makes the contractual
obligations inapplicable to property owners who scoffed at the deed restrictions and act quickly
enough to evade enforcement. Such interpretation does not comport with the very plain language
of Article II or Article XII, which authorizes any subdivision property owner to prosecute in law
or equity any violation of any restriction to prevent the violation or obtain other relief. Article II
logically must be understood to require subdivision property owners to submit plans to the
Association or its representative for approval before commencing any building alteration. The use
of the word “shall” in Article II expresses a categorical imperative which does not permit or
condone violation of the approval process or suggest that intentional or even inadvertent violations
of the requirements are excusable and rendered unenforceable.
Article II’s provisions are framed in an if-then form: if the owner submits a plan and the
Association fails to act within 30 days, then the property owner does not need the Association’s
approval to proceed with his or her building or renovation.4 More specifically, the provisions
intend that a property owner would not need the Association’s written approval if the Association
did not approve or disapprove the plans within 30 days of the property owner’s submission of the
plans, or if no one sued to enjoin the building or renovation before completion of the building or
renovation. The approval exceptions are stated as consequences for inaction: a homeowner does
not need approval if, after submission of the plans, the Association fails to act within the time limit
or no one sues to enjoin the property owner before completing the proposed project. Notably, the
second exception does not apply solely to the Association’s inaction—any suit by any person to
enjoin will preclude application of the exception.
The approval exceptions must be understood in light of the fact that the parties to the
Restrictions agreed that, under the first provision of Article II, a property owner has no authority
to begin building or renovating without first obtaining the Association’s approval. Article II
plainly and clearly imposes a duty on property owners to submit plans for approval to the
4
Notably, the exception only applies to the approval process stated in Article II. It does not provide
an exception to application of the restrictive covenants as a whole.
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Association before the property owner can make any alterations or begin any construction. The
exceptions to the approval requirement apply when the property owner has sought approval, but
the Association fails to timely act on the submission. The second exception provision applies only
when the property owner has sought approval and no party sues to enjoin the project before its
completion. The second exception is closely linked with the first in that it is couched as an
alternative to the requirement that the Association act timely. Because a property owner cannot
commence a project without first getting the Association’s approval, it is evident that the second
exception cannot be interpreted to allow a property owner to breach Article II and then be rewarded
for doing so. Such a construction would render the primary obligation nugatory; and courts must
avoid a construction of one part of a contract that renders another part surplusage or nugatory. See
Klapp v United Ins Group Agency, Inc, 468 Mich 459, 468; 663 NW2d 447 (2003). Properly
understood, the first exception applies only when the property owner has first sought approval for
the project and the Association has by its inaction waived its right to approve the project. The
property owner does not need the Association’s approval to proceed after the 30-day period has
elapsed. However, if someone sues to enjoin the project after it has begun, but before it is
complete, the property owner’s project is again subject to the approval requirement. Both
exception provisions contemplate that the property owner has first met the plan submission
obligation which puts everyone on notice of the owner’s plans. If the property owner has not
submitted plans for approval, neither exception applies.
In this case, it is undisputed the Merhis failed to submit any plans to the Association or its
representative for approval. Therefore, neither exception to the approval requirement stated in
Article II applies. Because the Merhis failed to establish a genuine issue of fact as to whether they
had to obtain the Association’s approval, the trial court did not err when it determined that the
Association had shown that the Merhis breached the Restrictions by failing to submit plans for
approval before commencing their renovations.
The trial court also did not err when it granted summary disposition notwithstanding the
Merhis’s claim that the failure to submit plans amounted to a mere technical violation. Our
Supreme Court has stated that courts will enforce otherwise valid deed restrictions by injunction
except in three situations: (1) when the breach sought to be enjoined was a mere technical violation
without substantial injury; (2) when the conditions have changed such that the restrictions are no
longer enforceable; and (3) when enforcement is barred by the applicable period of limitations or
the equitable doctrine of laches. See Cooper v Kovan, 349 Mich 520, 530; 84 NW2d 859 (1957).
This Court has defined a technical violation as a slight deviation or violation that in no way adds
to or takes from the objects and purposes of the general scheme of development reflected by the
deed restrictions. See Webb v Smith (After Second Remand), 224 Mich App 203, 212; 568 NW2d
378 (1997).
In this case, the Merhis’s failure to submit their plans to the Association deprived the
Association of the right to review the plans and determine whether the proposed changes to the
exterior of the Merhis’s home were in conformity and harmony with the character of the structures
in the subdivision as a whole. The Association presented substantial evidence that it did not
approve and would not have approved the stone facade at issue, notwithstanding that it was stone,
which was a permitted material for exteriors. The Association explained to the trial court that the
modern stone choice clashed with the traditional uses of stone on the facades of structures that
predominated in the subdivision. The Association also showed that, for those homes within the
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subdivision that had stone facades and had a cantilevered upper story, such homes did not have
stone on the upper story but instead had wood or vinyl siding.
Had the Merhis submitted plans to the Association before they commenced their work, the
Association could have disapproved the plan and worked with the Merhis to help develop a plan
in conformity and harmony with the existing design character of the structures in the subdivision.
The Merhis’s failure to submit plans and unapproved exterior nonconforming alteration caused
substantial injury and compelled the Association to enforce the Restrictions after the project had
already been started and when any dispute would necessarily involve considerable expense. See
id.; see also Village of Hickory Pointe Homeowners Ass’n v Smyk, 262 Mich App 512, 516; 686
NW2d 506 (2004) (rejecting the contention that a property owner’s failure to submit plans for
approval before commencing the work amounts to a mere technical violation). The trial court,
therefore, did not err by refusing to excuse the Mehris’s breaches of the Restrictions as a mere
technical violation.
C. THE FENCING
The Merhis contend that their fencing complied with the Restriction’s fence provision. In
its motion for summary disposition, the Association presented evidence that, if left unrebutted,
established that the Merhis violated the Restrictions by constructing a fence that exceeded the
height limitation and obstructed views.
Article III of the Restrictions defines the building line for all lots to be 25 feet from the
front street. Article X prohibits property owners from erecting fences in the area in front of the
building line but allows fencing to the rear of the building line. Such rear fencing, however, must
be “not more than four (4) feet high,” must not be “constructed of solid board,” and must not
“obstruct the view.” These restrictions are not ambiguous and, contrary to the Merhis’s contention
on appeal, apply to all fencing in the areas where fencing is permitted. Because the Restrictions
on fencing are not ambiguous, they must be enforced as written. See Thiel, 504 Mich at 496. The
unambiguous restrictions on fencing prohibit any fence that exceeds four feet in height, has solid
boards, and blocks the line of sight.
In its motion for summary disposition, the Association submitted photos of the Merhis’s
property that showed two spans of fencing. The image of the fence on the side of the Merhis’s
house showed a solid fence. The image of the fence at the driveway similarly showed that it too
was solid. It also showed that their fence stood significantly taller than the neighbor’s fence, which
appeared to be a typical chain-link fence. The Association presented sufficient evidence to
establish that the Merhis had erected fencing that violated the Restrictions. In their response, the
Merhis presented no evidence to rebut the Association’s evidence.
For the first time on appeal, the Merhis argue that the Association failed to present evidence
demonstrating that every length of their fencing violated the Restrictions. They assert that the
Association’s photos did not depict the fencing at the rear of the lot. This argument lacks merit
because the Association did not have to establish that the entire backyard fencing violated the
Restrictions to prevail. The Association merely had to demonstrate that the Mehris’s fencing,
whether all or merely a portion, failed to conform to the Restriction’s limitations. The trial court’s
January 2020 order required the Mehris to bring their fences into compliance with the Restrictions.
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Thus, regardless whether all or merely a portion failed to comply, only the noncompliant portion
had to be changed. The Mehris cannot establish the existence of a genuine issue of material fact
in this regard. Moreover, even if the degree of nonconformity constituted a material fact for the
fact-finder’s determination, the Merhis had the obligation to establish the existence of such a
genuine issue of material fact once the Association presented evidence of the fencing’s violation
of the Restrictions. They failed to do so. Now they merely suggest that the spans which are not
clearly visible in the Association’s photographic images might not violate the Restrictions. Such
assertion does not establish a genuine issue of material fact. Accordingly, the trial court did not
err when it determined that the Association proved that the Merhis’s fence violated the Restrictions
entitling the Association to judgment as a matter of law.
The Merhis also argue that they established a question of fact as to whether they had
defenses to the enforcement of the Restrictions. They specifically maintain that the Association
could not enforce the Restrictions after sitting on its rights for five years regarding their fencing.
We disagree.
Once the Association established that the Merhis violated the Restrictions governing
fencing, the burden shifted to the Merhis to present evidence to support their affirmative defenses.
See Palenkas v Beaumont Hosp, 432 Mich 527, 548; 443 NW2d 354 (1989) (opinion by
ARCHER, J.); see also id. at 530 (concurring in Sections I and II of Justice ARCHER’S opinion). The
Merhis only presented evidence that they built the fences five years earlier and that the Association
did not enforce the Restrictions until recently. The Merhis suggest that the delay alone sufficed to
establish waiver, but mere delay is not sufficient to establish that defense.
“A waiver is a voluntary relinquishment of a known right.” See McDonald v Farm Bureau
Ins Co, 480 Mich 191, 204; 747 NW2d 811 (2008) (quotation marks and citation omitted). A party
to a contract may affirmatively waive his or her rights under a contract, but the act or acts giving
rise to waiver must be done with full knowledge of the relevant facts. See Bastian Bros Co v
Brown, 293 Mich 242, 250-251; 291 NW 644 (1940). Further, a waiver of the right to enforce a
restriction by one lot owner does not preclude a different lot owner from seeking to enforce the
restriction. See Cook v Bandeen, 356 Mich 328, 335; 96 NW2d 743 (1959).
In this case, the Merhis did not present any evidence that the Association knew that the
Merhis had violated the fencing restrictions before the Association discovered the facade alteration
issue. When there is no evidence that the party seeking to enforce deed restrictions knew about
the violation earlier than the events giving rise to the suit, there can be no waiver. See Jones v
Schaffer, 332 Mich 190, 193; 50 NW2d 753 (1952) (rejecting the argument that the use of the
residence as a five-family unit for 17 years amounted to waiver because there was no evidence
concerning when the plaintiff first became aware of the situation). The Merhis failed to present
evidence that the Association waived its right to enforce the Restrictions on fencing.
The Merhis also failed to establish that the Association untimely filed its complaint about
the fencing. MCL 600.5807(5) provides that a 10-year period of limitations applies to actions
founded on a covenant in a deed. Ordinary actions for breach of contract are subject to a six-year
period of limitations. MCL 600.5807(9). The record indicates that the Merhis erected the fencing
around 2013 and the Association sued in 2018. Accordingly, regardless whether a 6-year or 10-
year limitations period applied, neither statute of limitations barred the Association’s lawsuit.
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Further, although a court sitting in equity may bar a claim as untimely under the doctrine
of laches, the mere passage of time alone does not establish laches. See Knight v Northpointe
Bank, 300 Mich App 109, 114-115; 832 NW2d 439 (2013). Rather, evidence must show that the
plaintiff’s failure to earlier act prejudiced the defendant. Id. at 115. The party charged with laches
must have some legal notice—actual or constructive—that puts him or her on notice that he or she
needs to act or might lose the right to do so. See McCrickett v Wilson, 50 Mich 513, 516; 15 NW
885 (1883) (“It is claimed the defendant is guilty of such laches in not sooner moving for the relief
she now prays as to deprive her of any benefit from her petition. Upon this point it is sufficient to
say that some legal notice, actual or constructive, must be given to the defendant, making it
reasonable or necessary for her to act before such laches can be imputed.”). The Merhis did not
present any evidence that the Association had legal notice of the noncompliant fencing earlier and
sat on its rights, or that the Association’s failure to sue earlier prejudiced them. Moreover, it is
well established that “one who seeks equity must do equity.” Windisch v Mtg Security Corp of
America, 254 Mich 492, 493-494; 236 NW 880 (1931). The Merhis, who indisputably violated
the Restrictions, cannot be said to have clean hands and entitled to equitable relief.
The Association properly supported its motion for summary disposition with undisputed
evidence that established that the Merhis failed to seek approval before installing the fencing, that
their fencing violated the Restrictions, and the Merhis failed to present any evidence that the
fencing did not violate the Restrictions. The Mehris failed to present any evidence that they had a
defense to the enforcement of the Restrictions on fencing. The trial court, therefore, did not err
when it granted the Association’s motion for summary disposition as to the fencing.
D. THE STONE FACADE
The Association also moved for summary disposition on its claim that the Merhis’s front
exterior design alteration of their house violated the Restrictions. Specifically, the Association
sought to enforce its right to prevent improvements that were not in conformity and harmony with
the other homes in the subdivision as provided under Article II of the Restrictions. The Association
submitted evidence that it had informed the Merhis that it did not approve the changes because it
felt that the changes were not in conformity and harmony with the other structures in the
subdivision. It also supported its motion with numerous photos of homes in the subdivision and
showed that none of the homes used a modern split stone on their exterior facades. The photos
revealed that none of the homes with an upper story cantilever design featured siding for the
cantilevered portion other than wood, vinyl, or other authorized siding (with one exception, which
had been disputed in another lawsuit). The Association’s evidence sufficed to establish that the
Restrictions precluded a property owner from making alterations without first obtaining the
Association’s determination that the alteration would be in conformity and harmony with external
design of existing structures in the subdivision. The Association established that it never approved
the Merhis’s facade alterations because they never sought approval and because the changes failed
to conform or harmonize with the other homes in the subdivision.
In response to the Association’s motion, the Merhis argued that their selection of stone did
not violate the Restrictions because the Restrictions specifically allowed a property owner to use
stone, and they contended that a question of fact existed whether they met that requirement. They
also asserted that the Restrictions had no provisions specifically applicable to cantilevers and that
none of the homes had a historic home designation.
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Under Article VI of the Restrictions, a property owner must construct all “buildings . . . of
stone, brick or stucco exterior.” A property owner may use wood siding with special approval
from the Association. The Merhis’s argument that their use of stone was consistent with Article
VI, however, was inapposite, as was their mention of the fact that none of the houses had been
determined to be historic homes. The Association did not argue that the Merhis violated Article VI
or some provision for historic homes. Rather, the Association argued and presented evidence that
the specific type of stone that the Merhis selected failed to conform and be in harmony with the
existing structures in the subdivision as required by Article II of the Restrictions. Similarly, the
fact that the Restrictions did not provide any restrictions applicable to cantilevers did not preclude
the Association from concluding that a particular renovation involving a cantilevered portion of a
house was not in conformity or harmony with the style of other houses that had cantilevers.
The Restrictions required property owners to use stone, brick, or stucco siding, but they
also required the property owner’s project to be in conformity and harmony with the other exterior
designs in the subdivision. For that reason, the Restrictions cannot be interpreted to provide that
any selection of stone for a structure’s facade automatically complied with the Restrictions. The
property owners who collectively adopted the deed restrictions agreed that the Association had
authority to decide whether a particular construction or alteration project conformed with and
harmonized with the other structures in the subdivision. Generally, when parties agree to submit
a matter to a third party for a determination, the third party’s determination is binding on the parties
in the absence of fraud, bad faith, or mistake. See Strom-Johnson Const Co v Riverview Furniture
Co, 227 Mich 55, 65-66; 198 NW 714 (1924). The same is true for deed restrictions. The
reservation of a right of approval is a valid and enforceable covenant. See West Bloomfield Co v
Haddock, 326 Mich 601, 612; 40 NW2d 738 (1950). Courts review such decisions only to
determine whether the party with the right of approval exercised that right in a fair and reasonable
manner. Id. at 612-613.
In this case, the Association determined that the particular style of stone selected by the
Merhis and their decision to use it over the entire facade of their house—including the cantilevered
portion—failed to conform and harmonize with the other houses in the subdivision. The terms
conformity and harmony were not defined in the Restrictions and so should be given their ordinary
meaning. A house is in conformity with other houses when it corresponds in form, manner, or
character with the other houses. See Merriam-Webster’s Collegiate Dictionary (11th ed) (defining
conformity). Similarly, a house is in harmony with the other houses in the subdivision when its
structure and composition are congruent and in agreement with the houses in the whole
subdivision. Merriam-Webster’s Collegiate Dictionary (11th ed). The Association presented
evidence that none of the homes with cantilevers—other than an outlier that was subject to
litigation—had stone siding across the entire facade of the home. Rather, for houses with a
cantilevered upper level, the evidence established that the houses had stone or brick on the lower
level and wood or vinyl siding on the cantilevered upper level. The Association also established
that none of the houses used the modern style of split stone that the Mehris installed. Further, the
evidence established that the houses with stone on their facades used more traditional stone
applications. This evidence demonstrated that the Association reasonably determined that the
Merhis’s project lacked conformity and harmony with the exterior design of structures within the
subdivision. See West Bloomfield, 326 Mich at 612.
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Contrary to the Merhis’s argument on appeal, the Association did not impose new
restrictions in the guise of interpreting existing restrictions. See, e.g., Conlin, 313 Mich App
at 265-266. Rather, the Restrictions unambiguously required all property owners to submit their
proposed plans for alterations to the Association and gave the Association the discretion to
determine whether such proposed plans were in conformity and harmony with the existing
structures in the subdivision. Because the subdivision had been long established, this case did not
involve a self-imposed plan premised on restrictions adopted on some ad hoc basis. Rather, the
subdivision had a common plan visually exemplified by the existing houses, which plan the record
reflects guided the Association’s exercise of discretion. See Ardmore Ass’n v Bankle, 329 Mich
573, 577-578; 46 NW2d 378 (1951) (holding that a reservation of the power to approve building
plans by reference to the types of homes already in the subdivision is enforceable when the
subdivision has been sufficiently developed to establish a common plan). Accordingly, the
Restrictions specifically authorized the Association to determine whether the stone and its
installation conformed and harmonized with the existing houses in the subdivision. The record
does not indicate that the Association exercised its discretion unfairly or unreasonably in this case.
See West Bloomfield, 326 Mich at 612.
The Merhis argued to the trial court that several of the photos submitted by the Association
demonstrated that the Association acted unreasonably when it determined that their renovation
failed to conform and harmonize with other houses in the subdivision. For example, they asserted
that the photo of 24316 Fairmount showed that it had modern brick over the entire front of the
house. That photo, however, depicts a brick house with brick veneer on the front, flat-faced portion
of the two-story facade; but on the cantilevered portion of the house, the second story has wood
siding. The Merhis’s house, by contrast, features a full cantilevered second story design. As such,
the photo of the Fairmount house actually supported the Association’s position. The other images
cited by the Merhis similarly contradicted the Merhis’s position. The image of 341 South
Highland, for example, showed a house with traditional stone—which was strikingly different
from the stone selected by the Merhis—on the lower portion of the facade, with wood siding on
the cantilevered portion of the house.
In response to the Association’s motion, the Merhis failed to present or identify any
evidence that the Association unfairly or unreasonably determined that the Merhis’s design choices
failed to conform and harmonize with the existing structures. Because the evidence established
that the Mehris failed to engage in the plan approval process required under Article II, and no
evidence establishes that the Association improperly exercised its discretion to disapprove of the
Merhis’s alteration, the trial court properly determined that the Association established as a matter
of law that the Merhis’s alteration violated Article II of the Restrictions.
The Merhis also argued before the trial court that the Association attempted to expand the
Restrictions with its guidelines. That argument lacks merit. The Association sought enforcement
of the Restrictions’ conformity and harmony provision of Article II—it did not attempt to enforce
its guidelines. Further, it was not improper for the Association to promulgate guidelines to
illustrate the way that the subdivision had developed for purposes of applying Article II.
The Merhis also suggest that the trial court erred to the extent that it deferred to the
Association’s assessment whether the Merhis’s alteration conformed with the subdivision as a
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whole. More specifically, they argue that the trial court ultimately had the discretion to choose
whether to enforce the Restrictions in equity and had to make that determination itself.
The parties to the deed restrictions chose to assign the authority to determine whether a
particular alteration was in conformity and harmony with the external design of structures within
the subdivision to the Association; they did not assign that authority to the trial court. Courts must
respect the parties’ freedom to agree contractually to assign the right to a third party. See
Bloomfield Estates, 479 Mich at 214. That provision is unambiguous and had to be enforced as
written. See Thiel, 504 Mich at 496-497. The trial court had the role to determine whether a
genuine factual dispute existed regarding whether the Association acted fairly and reasonably
when it made its determination; it did not have the authority to make the conformity and harmony
determination for itself. See West Bloomfield, 326 Mich at 612-613. The record reflects that the
Association presented substantial evidence that the Merhis’s facade alteration clashed with the
external design of the other houses in the subdivision. Given the plethora of evidence, no
reasonable fact-finder could find that the Association acted unfairly or unreasonably when it
determined that the Merhis’s alteration failed to conform and be in harmony with the houses in the
subdivision. See West, 469 Mich at 183 (defining a genuine issue of material fact to be one for
which there is evidence about which reasonable minds might disagree). Therefore, the trial court
had to enforce that determination.
The Merhis’s claim that the trial court also had the authority to refuse to enforce the
Association’s determination if it felt that the balance of the equities warranted doing so was also
misplaced. In Cooper, our Supreme Court examined whether the trial court sitting in equity
properly applied the law when it resolved a claim by a property owner who sought to enforce a
deed restriction that limited the use of lots within the subdivision for residences. Cooper, 349
Mich at 522-525. The Court opined that the trial court correctly determined that the restrictions
were clear and unambiguous. Id. at 527-528. It also agreed with the trial court that the plaintiffs
did not waive their right to enforce the restrictions by acquiescing to intermittent, noncommercial
use, which did not involve permanent structures. Id. at 529. Our Supreme Court only disagreed
with the trial court’s ultimate decree.
The Court explained that the trial court had apparently sought to balance the equities of all
the parties. The trial court allowed the defendant to make commercial use of the property, but
ordered a green belt around the area to be used for the shopping center. Our Supreme Court
disagreed that the trial court had the authority to balance the equities in that way. The Court
explained that trial courts must generally enforce valid deed restrictions by injunction. The Court
recognized that there were exceptions; it stated, for example, that courts sitting in equity will enter
orders to remedy mere technical violations with no substantial injury. It also stated that courts
sitting in equity will not enforce restrictions, which had become unenforceable through changed
conditions, and will not enforce restrictions after the passage of the applicable period of limitations
or under the doctrine of laches. Id. at 530.
After restating these principles of law, the Court examined the facts and determined that
allowing a commercial center in violation of the deed restriction was not a technical violation with
no substantial injury; it was a clear violation that imposed a substantial harm on all the residences
in the subdivision. Id. at 530-531. The Court also noted that the plaintiffs were not guilty of laches
and sued within the applicable period of limitations. Id. at 531. Finally, the Court rejected the
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contention that the evidence showed that there had been a change in circumstances that made it
inequitable to enforce the restriction. Id. at 531-532. Having concluded that none of the
exceptions to the general rule that unambiguous deed restrictions must be enforced as written
applied to the case at hand, the Court vacated the trial court’s decree and remanded the case for
entry of an order enforcing the restrictions. Id. at 533.
This Court has held that our Supreme Court’s decision in Cooper established the rule that
courts must generally enforce valid deed restrictions as written unless one of the exceptions
identified in Cooper applies. See Webb, 224 Mich App at 211-212 (holding that the trial court did
not err when it refused to balance the interests in fashioning its decree and stating that the proper
inquiry was whether any of the exceptions to enforcement stated in Cooper applied). As such, the
trial court did not have the discretion to balance the equities and choose to enforce the restrictions
in part or not at all, depending on the facts.
In this case, the Merhis did not present any evidence that the character of the neighborhood
had changed so much that it would be inequitable to enforce the Restrictions at issue. As already
discussed, the evidence also showed that the Association was not guilty of laches and did not waive
its right to enforce the Restrictions against the Merhis. The evidence showed too that the
applicable period of limitations had not passed and that the Merhis’s violations were not mere
technical violations that caused no substantial injury. Accordingly, none of the exceptions stated
in Cooper applied to the facts of this case. See Cooper, 349 Mich at 530. Even assuming that the
trial court had the discretion to balance the equities, the Merhis failed to present any evidence
tending to show that it would be inequitable to enforce the Restrictions against them. Rather, the
equities favored enforcing the Restrictions, lest today’s exception become tomorrow’s precedent.
See Oosterhouse v Brummel, 343 Mich 283, 289; 72 NW2d 6 (1955).
Given the undisputed evidence, the trial court erred when it originally denied the
Association’s motion for summary disposition regarding whether the Merhis violated Article II of
the Restrictions when they selected a type of facade that was not in conformity and harmony with
the types of facades on existing houses and chose to use it on the cantilever portion of their house
in contravention of the prevailing external design of structures in the subdivision. Therefore, the
trial court did not abuse its discretion when it corrected its error on reconsideration. See Auto-
Owners Ins Co v Compass Healthcare, PLC, 326 Mich App 595, 608; 928 NW2d 726 (2018)
(recognizing that trial courts have considerable discretion to grant reconsideration to correct
mistakes).
IV. RECONSIDERATION
A. STANDARD OF REVIEW
The Merhis also raise several claims of error involving the trial court’s decision to grant
the Association’s motion for reconsideration, enter the Association’s proposed order on
reconsideration, and deny the Merhis’s motion for reconsideration. We review for an abuse of
discretion a trial court’s decision on a motion for reconsideration. Auto-Owners, 326 Mich App
at 607. A trial court abuses its discretion when its decision falls outside the range of reasonable
and principled outcomes. Id.
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B. ANALYSIS
On appeal, the Merhis suggest that the trial court erred when it granted the Association’s
motion for reconsideration because they had established a question of fact that precluded summary
disposition. We disagree.
To establish grounds for reconsideration, the Association had to prove that the trial court
made a palpable error and that a different disposition would result from correction of the error.
See Luckow Estate v Luckow, 291 Mich App 417, 426; 805 NW2d 453 (2011), citing
MCR 2.119(F)(3). As already discussed, the trial court erred when it originally denied the
Association’s motion for summary disposition of its claim that the Merhis’s stone facade alteration
violated the Restrictions. The Association correctly demonstrated that it alone had the authority
to determine whether the Merhis’s external design material choice and installation were in
conformity and harmony with the exterior designs of existing structures in the subdivision. The
trial court’s role was to determine whether the Merhis established a question of fact as to whether
the Association exercised its discretion in a fair and reasonable manner. See West Bloomfield, 326
Mich at 612-613. The record reflects that the Merhis failed to establish a genuine issue of material
fact on that issue which required the trial court to grant the Association’s motion for summary
disposition. Because the Association established a palpable error that affected the outcome, see
Luckow Estate, 291 Mich App at 426, the trial court did not abuse its discretion when it granted
the Association’s motion for reconsideration, see Auto-Owners, 326 Mich App at 607.
The Merhis also argue that the trial court erred when it denied their motion for
reconsideration of the trial court’s decision to enter the order of June 26, 2020. Specifically, they
argue that the trial court erred when it signed the Association’s proposed order because it contained
relief that the trial court did not discuss orally.
At the hearing on the Association’s motion for reconsideration, the trial court did not allow
the parties to argue; it merely stated that it reconsidered its prior decision and decided to grant the
Association’s summary disposition motion. The trial court did not provide further analysis beyond
stating that it had the authority to change its mind. Thereafter, the Association submitted a
proposed order granting its motion for reconsideration and granting its motion for summary
disposition in full and ordering summary disposition in its favor against the Merhis. The
Association also included language ordering a default judgment against Rana. The proposed order
included a command to bring the fence “into compliance” and required the Merhis to remove the
stone siding “on or before June 30, 2020,” and replace it with “approved brick and vinyl or wood
siding.” The proposed order included language that the Association would be “allowed” to return
to court to enforce the order and obtain further relief, which “shall include” an award of attorney
fees. The proposed order also included an injunction restraining the Merhis from modifying,
altering, improving, or building without first obtaining written approval from the Association.
A party may submit a proposed order after the trial court grants judgment or an order. See
MCR 2.602(B)(3). In the absence of objections, the trial court had to sign the Association’s
proposed order submitted under the seven-day rule, MCR 2.602(B)(3), if the court determined that
the order comported with its decision. See MCR 2.602(B)(3)(a). Additionally, although trial
courts speak through their written orders, a trial court may not sign a proposed order that does not
comport with its earlier oral ruling. See Jones v Jones, 320 Mich App 248, 261 & n 5; 905 NW2d
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475 (2017). A trial court, however, can sign an order submitted under MCR 2.602(B)(3) that
includes terms that the trial court did not specifically mention at a hearing. Stated another way,
although a trial court’s oral pronouncements limit the content of a proposed order submitted under
MCR 2.602(B)(3), see Jones, 320 Mich App at 261 & n 5, the content of the order may include
things impliedly authorized by the ruling, but not specifically discussed. Therefore, to the extent
that the Merhis rely solely on the fact that the trial court did not orally discuss each element found
in the proposed order, their claims have no merit.
The only oral ruling that the parties had to guide the content of any proposed order was the
trial court’s statement that it had decided to grant the Association’s motion for reconsideration. In
its motion for reconsideration, the Association asked the trial court to grant two forms of relief:
(1) the grant of summary disposition on the issue of the stone facade alteration, which had
previously been denied, and (2) to order entry of default judgment against Rana. Because the trial
court stated that it was granting the motion for reconsideration, it cannot be said that the language
granting the Association’s motion for summary disposition on the stone facade and entering the
default did not comport with the trial court’s oral pronouncement. Further, the trial court had
already determined that the Merhis had violated the Restriction governing fences. There was also
nothing inconsistent with the trial court’s decision that precluded the Association from including
language requiring the Merhis to bring their fence into compliance with the Restrictions.
Accordingly, the trial court did not abuse its discretion when it denied the Merhis’s motion for
reconsideration of its decision to sign the order because of these provisions. See Auto-Owners,
326 Mich App at 607.
The proposed order, however, included terms that went beyond those implied by the trial
court’s decision to grant summary disposition. By granting the Association’s motion for summary
disposition, the trial court acknowledged that the Association properly exercised its discretion to
disapprove the Merhis’s choice of stone and decision to install it over the entire facade of their
house. The proposed order could—for that reason—include language requiring removal of the
stone installed in violation of the Restrictions and replacement with an exterior design in
conformity and harmony with the exterior designs of structures within the subdivision as
determined by the Association. It did not follow from the trial court’s decision, however, that the
order could include requirements beyond those stated in the Restrictions. For example, the
Association presented evidence that other houses had stone on the portion of the house below the
cantilevered portion, which suggested that the Merhis could again choose stone for the lower
portion of the facade on their house, if the stone is in conformity and harmony with the subdivision
as a whole. Therefore, the order should not have limited the Merhis to the use of particular types
of materials when replacing their facade. Rather, the order should have limited the Merhis to
selecting facade materials in conformity and harmony with the exterior design of structures in the
subdivision as determined by the Association consistent with Article II of the Restrictions.
The Association also went too far when it included provisions in the order that required the
trial court to award attorney fees if the Association had to return to court to enforce the order. The
trial court’s decision did not impliedly include any award of attorney fees, let alone a ruling that
future actions to enforce the order would result in a mandatory award of attorney fees.
Finally, although the trial court’s decision to grant the Association’s motion for
reconsideration impliedly included authorization to order the Merhis to refrain from violating the
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Restrictions in the future, see, e.g., Redmond, 332 Mich App at 439 (recognizing that a court may
enjoin a threatened violation and may enjoin activities that had been adjudicated to be tortious),
the language used in the order went beyond merely requiring the Merhis to follow the Restrictions.
The order provided that the Merhis, were “enjoined and restrained from modifying, altering,
improving, or building any structures in Dearborn Hills without first obtaining written approval
from the [Association].” The Restrictions do not require property owners to get the Association’s
approval for any and all projects involving their property; the Restrictions require approval for
changes to the exterior design of the house. As such, the language in the order was too broad and
did not comport with the trial court’s express or implied ruling.
Finally, by the time the trial court entered the order on June 26, 2020, the Merhis could not
possibly comply with the order’s June 30, 2020 deadline for making the exterior design change
required by the order. The trial court’s decision to grant the Association’s motion for
reconsideration did not impliedly authorize the Association to set an impossible deadline. The
trial court, therefore, should have modified the order to provide the Merhis a reasonable time to
comply with its orders.
Because the trial court did not have the authority to sign a proposed order that conflicted
with its oral pronouncement, see Jones, 320 Mich App at 261 & n 5, the trial court erred when it
signed the Association’s proposed order as written. See MCR 2.602(B)(3)(a). The Merhis
established palpable error and showed that the trial court should have corrected the order to
comport with its decision. See Luckow Estate, 291 Mich App at 426. The trial court, therefore,
abused its discretion when it denied the Merhis’s motion for reconsideration of its decision to enter
the June 26, 2020 order. See Auto-Owners, 326 Mich App at 607. The trial court should have
corrected the June 26, 2020 order to comport with its decision before signing it.
MCR 2.602(B)(3)(a).
V. DAMAGES
The Association argues on appeal that the Merhis grossly violated the requirements of
MCR 7.212(J)(3)(e), and, on that basis, invites this Court to award damages under MCR 7.216(C).
The Association, however, specifically states that it is not requesting damages by motion. The
rules provide that a party may not request damages in this way. See MCR 7.211(C)(8).
Consequently, we decline the Association’s invitation. See, e.g., Fette v Peters Constr Co, 310
Mich App 535, 553-554; 871 NW2d 877 (2015).
VI. CONCLUSION
For the reasons explained in this opinion, we affirm the trial court’s decision to grant the
Association’s motions for reconsideration and summary disposition. However, we vacate the trial
court’s June 26, 2020 order, and remand for entry of a new order consistent with this opinion that
comports with the trial court’s decision to grant the Association’s motions.
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Affirmed in part, vacated in part, and remanded for entry of a new order granting the
Association’s motions. Because none of the parties prevailed in full, we order that none may tax
costs. See MCR 7.219(A). We do not retain jurisdiction.
/s/ Anica Letica
/s/ James Robert Redford
/s/ Michelle M. Rick
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