Michigan Supreme Court Denies Plaintiff’s Application for Leave in Favor of Condominium Association

Joel Ashton and Stanley Okoli recently had dismissals upheld on two related Condominium Association cases in the Michigan Court of Appeals and Michigan Supreme Court.

To say the least, these were contentious cases in which a co-owner experienced a sewer back-up in her basement in October 2016, with the alleged subsequent discovery of rod hole leaks in the foundation, for which she initially sued the Condominium Association, its insurer, the plumbing/sewer cleaning service and the restoration company, but also eventually attempted to remove the assigned Washtenaw County Circuit Court Judge on alleged bias, attempted to disqualify the entire Washtenaw County bench by way of a Writ for Superintending Control to the Court of Appeals, sent a Quo Warranto Action Request to the Attorney General, later filed a second lawsuit against the individual board members of the Condominium Association and its general manager, and eventually appealed the dismissals of both cases.

While difficult to summarize the plaintiff’s often vague and evolving claims, she essentially claimed that the Condominium Association and plumbing/sewer service were involved in a conspiracy to hide a larger sewer or drainage problem from the association members.  During discovery, the plumbing/sewer service representative testified that the back-up was caused by tampons being flushed down toilets, which could have entered the system from any of the multiple units sharing the system, which he was able to remove to remedy the back-up.  Despite discovery supporting that the plaintiff recognized the cause in a social media platform, in which she also requested that co-owners limit what they flushed down their toilets, the plaintiff denied that tampons were found or the cause of the back-up during litigation.

Consistent with their duties in the governing documents, the Condominium Association was always willing to maintain or repair any common elements for the plaintiff, including the sewer and foundation, but, after some initial interactions, she refused to allow the Condominium Association to send representatives of its choosing to inspect her unit – this also despite the governing documents giving the association the right to have representatives of its choice inspect the unit.

The plaintiff filed a lengthy Complaint, alleging many counts against the parties, including breach of contract, negligent misrepresentation, specific performance, unjust enrichment and breach of fiduciary duty.  Throughout discovery, Plaintiff counsel adjourned the plaintiff’s deposition three different times, eventually resulting in an Order to Compel her testimony.  During discovery, Plaintiff counsel advised Defense counsel that she would not be utilizing any experts, did not reveal any experts in response to discovery, and, in fact, did not list any experts on her Witness List.  Without leave of Court, she then attempted to supplement her Witness List with several experts, which the Court then struck pursuant to our Motion to Strike Experts.  Plaintiff counsel filed voluminous motions, most of which were denied and followed by motions for reconsideration.  We were able to have all counts dismissed on summary disposition, except for breach of contract due to a perceived question of fact.

As an example of the Plaintiff’s gamesmanship and abuse in this case, late in the case, the judge allowed the Plaintiff to amend her Complaint to add counts for intentional infliction of emotional distress, conspiracy, intentional misrepresentation and nuisance at a Wednesday motion call, but requiring the amended complaint to be filed by that Friday. At the Plaintiff’s court ordered deposition on that Thursday and Friday, Plaintiff counsel refused to allow the plaintiff to answer questions about the newly added counts on the basis that the counts had not yet been added since the amended complaint had not yet been filed.  We immediately moved to dismiss the entire case and for sanctions, an extreme sanction which the judge admitted was almost deserved, but instead she just dismissed the newly added counts.  As another example, although the Court ordered the plaintiff to suggest the names of three proposed facilitators, which the defense could then consider or suggest three names of its own, Plaintiff counsel only suggested one and immediately filed a motion to require the use of that facilitator.

The Court ordered, non-binding facilitation hearing was eventually scheduled, at which the facilitator was specifically chosen by the plaintiff.  Despite the facilitator and the Court ordering an inspection of the unit, for which information could not be used as evidence at trial, the Plaintiff objected to the inspection.  Then the plaintiff only allowed part of the inspection to occur.  The facilitation was never completed due to Plaintiff counsel insisting on presenting the dismissed claims and threatening to sue the facilitator for interfering with her relationship with her client.  The plaintiff then refused to pay her portion of the facilitator fee (for which the facilitator later obtained a Judgment against the plaintiff).

As the case progressed, so did the plaintiff’s claimed damages. Although the governing documents made it the unit owner’s responsibility to insure personal property within the unit as well as improvements and betterments, and to pay for alternative living arrangements, the plaintiff initially requested approximately $25,000 for precisely these damages.  This was eventually increased to approximately $37,000 and then $380,000 pre-suit, with the total demand being more than $1,900.000 at the facilitation hearing.

In response to our filing a motion to dismiss based on the plaintiff’s failure to participate in the court-ordered facilitation in good faith or, alternately for security for costs, the plaintiff filed her second lawsuit, in which she deemed herself to be the derivative representative of the association members, focusing on alleged fraud in the facilitation, which she captioned as a business case and failed to reference the pending case, to which we moved to have the case transferred to the same judge along with the pending case.  It was at this point that, in addition to attempting to recuse the judge, the plaintiff also moved to remove defense counsel and our firm based on alleged fraud – which, of course, was denied.  Highlights of the second case included the plaintiff serving both the sitting judge and defense counsel with subpoenas for deposition.  The judge granted our motion for security for costs, requiring the plaintiff to post a bond for $50,000, which the plaintiff did not pay, the judge recused herself, based on the plaintiff’s perception of bias, and the case was assigned to a new judge, who dismissed the original case based on the plaintiff’s failure to post a security bond and dismissed the second case at our request based on the plaintiff not being the rightful representative of the association and bringing claims that should have been part of the original case.

As expected, the plaintiff appealed the dismissals of both cases which we had consolidated on appeal.  The plaintiff vaguely argued many points, including many constitutional theories, and that the plaintiff was denied her right to a trial since she could not afford to post a bond, but ignoring her own abuses and the substantive facts of the cases.  At oral argument, the panel focused their questions on the plaintiff’s gamesmanship and obstruction, including plaintiff counsel advising her client to not answer questions despite the lack of any privilege, attempting to hold the defense hostage by refusing to allow her client to answer questions unless we agreed to re-open discovery to allow her to utilize stricken experts, filing “multitudinous motions” and failing to follow court rules.

The Michigan Court of Appeals affirmed the trial court’s dismissal of both cases, agreeing with us that the plaintiff’s failure to timely name experts was not inadvertent, but part of “a pattern intended to deliberately drag out the litigation;” that the trial court’s determination of the issuance and amount of a security bond is determined on a case-by case basis; and that the second case should never have been filed.

Not yet done, the plaintiff then applied for leave to appeal to the Michigan Supreme Court on the original case.  The Michigan Supreme Court denied the application.

After 20 months of heated litigation in the trial court, a double appeal to the Michigan Court of Appeals and Application for Leave to the Michigan Supreme Court, it was satisfying to provide a victory for our Condominium Association.

Joel Ashton is a partner in the Livonia office of Cummings, McClorey, Davis & Acho, PLC where he focuses his practice on community association law, insurance defense, including Michigan No-Fault claims (PIP, automobile negligence, uninsured/ underinsured motorist), as well as premises liability and general negligence. His practice also includes the defense of contract and liability claims, contract interpretation issues, subrogation claims involving automobile, fire and casualty, commercial and related coverage. Mr. Ashton maintains an AV Preeminent Rating from Martindale -Hubbell, which is the highest possible rating an attorney can achieve for both ethical standards and legal ability. He may be reached at (734) 261-2400 or jashton@cmda-law.com.

Stanley I. Okoli is an attorney in in the Livonia office of Cummings, McClorey, Davis & Acho, PLC where he focuses his practice on research and writing, as well as litigation. He writes briefs for submission to all levels of state and federal courts, argues cases in both the state and federal courts of appeals, and performs research for all areas of law handled by our Firm. Mr. Okoli has taken over 30 cases to Michigan Court of Appeals and the Sixth Circuit Court of Appeals and has handled 14 jury trials. He may be reached at (734) 261-2400 or sokoli@cmda-law.com.