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### STATE OF MICHIGAN

COURT OF APPEALS

OLGA M. BROCK,

Plaintiff-Appellant, UNPUBLISHED April 25, 2017

v No. 328848 Macomb Circuit Court WINDING CREEK HOMEOWNERS ASSOCIATION, LC No. 2014-001883-CH

Defendant-Appellee, and

MAKOWER, ABBATE &ASSOCIATES LAW FIRM, LAZZARA & COM PANY, P.C., HEIDI GEOTTES, CHRIS WEBER, and CARLITAS ASBILL,

Defendants.

Before: S ERVITTO , P.J., and S TEPHENS and R ONAYNE K RAUSE , JJ.

P ER C URIAM

. Plaintiff appeals as of rightthe trial court opinion and orde r denying plaintiff’s motion for leave to amend the complaint and granting defendant summary dis position under MCR 2.116(C)(8) (failure to state a claim). We affirm.

I. BACKGROUND

Plaintiff Olga Brock is a memb er of defendant Winding Creek Ho meowners Association defendant as an owner of a residential home within the subdivis ion. 1 Plaintiff commenced this

1 Stipulated orders to dismiss were entered for all defendants e xcept Winding Creek Homeowners Association. Defendant Lazzara & Company, PC was di smissed May 1, 2015. Defendants Heidi Geottes, Chris Weber and Carlitas Asbill were dismissed May 7, 2015. Therefore, our reference to defe ndant is to the only remaining defendant Winding Creek Homeowners Association.-2- action in propia persona on May 9, 2014. Her complaint alleged that defendant violated the association’s bylaws covenants and restrictions by not adhering to general accounting principles, allowing homeowners to install fences without in-ground pools, and allowing homeowners to install sheds. Defendant moved for dismissal of plaintiff’s co mplaint under MCR 2.116(C)(5), (8), and (10). Defendant argued that the complaint failed to c ite to any specific court rule, statute or case law, and failed to state a claim. Instead of granting defendant summary disposition, the trial court ordered plaintiff to amend her complaint to state a legal claim. Plaintiff’s first amended complaint sought a statu tory injunction and statutory d amages under the Michigan Condominium Act (MCA), MCL 559.101 et seq

. Defendant again moved for summary disposition under MCR 2.116( C)(8) and (C)(10). The basis of the motion was that plaintiff’s complaint consiste d of two counts, both of which relied on the MCA, and that plaintiff lived in a single-family subdivision and not a condominium project. Defendant argued that summary disposition was proper because the “applicable statute upon which Plaintiff seeks relief does not govern the actions o f the Defendant; therefore, this complaint fails to state a claim upon which relief may be grant ed.” Plaintiff filed a brief in opposition with the assistance of counsel. Attached to the bri ef was a proposed second amended complaint containing exhibits a nd citation to the bylaws, but s till based on the MCA.

After a hearing on the motion, the court held:

The Court is satisfied that summary disposition is appropriate. Plaintiff’s claim is premised upon the Michigan Condominium Act, and defendant is no t subject to its terms since it is not a condom inium complex within the mean ing of the Act. The Court previously provided pl aintiff with the opportunity to file an amended complaint to state a claim upon wh ich relief can be granted in accordance with MCR 2.116(C)(5) in the February 6, 2015 Opinion and Order denying defendants’ first motion for summary disposition. The Court ha s therefore complied with the requirements of MCR 2.116(C)(5), and plaintif f has failed to state a claim upon which relief can be granted. Accordingly, d efendant’s motion for summary disposition should be granted.

This appeal followed.

II. STANDARD OF REVIEW

This Court reviews de novo the denial of summary disposition t o determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999). A motion under MCR 2.116(C)(8) tests the lega l sufficiency of the complaint by the pleadings alone. Id . at 119; MCR 2.116(G)(5). All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant. Id

. “Review is limited to the eviden ce presented to the trial court at the time the motion was denied.” Peña v Ingham Co Rd Comm , 255 Mich App 299, 313 n 4; 660 NW2d 351 (2003). A motion under MCR 2.116(C)(8) may be granted only where the claims alle ged are “so clearly unenforceable as a matter of law that no factual development co uld possibly justify recovery.” Maiden , 461 Mich at 119.-3- “Decisions concerning the meaning and scope of pleading, and d ecisions granting or denying motions to amend pleadings , are within the sound discre tion of the trial court and reversal is only appropriate whenthe trial court abuses that d iscretion.” Weymers v Khera , 454 Mich 639, 654; 563 NW2d 647 (1997). “An abuse of discretion ex ists when an unprejudiced person, considering the facts on which the trial court acted, w ould say that there was no justification or excuse for the ruling.” Jager v Nationwide Truck Brokers, Inc , 252 Mich App 464, 486; 652 NW2d 503 (2002).

II. ANALYSIS

Plaintiff presents two arguments on appeal. Plaintiff first argues that the trial court erred in granting defendant summary disposition, and second, that the trial court erred in refusing plaintiff leave to amend her complaint.

A. SUMMARY DISPOSITION

A complaint must contain “[a] s tatement of the facts, without repetition, on which the pleader relies in stating the cause of action, with the specifi c allegations necessary reasonably to inform the adverse party of the nature of the claims the advers e party is called on to defend.” MCR 2.111(B)(1). However, “[a]s the [United States Supreme] Co urt unanimously held in Haines v. Kerner , 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), a pro se c omplaint, ‘however inartfully pleaded,’ must be held to ‘less stringent s tandards than formal pleadings drafted by lawyers’ and can only be dismissed for failure to st ate a claim if it appears ‘beyond doubt that the plaintiff can prove no set of facts in support o f his claim which would entitle him to relief.’ Id ., at 520-521, 92 S. Ct. at 596, quoting Conley v. Gibson , 355 U.S. 41, 45- 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).” Estelle v Gamble , 429 US 97, 106; 97 S Ct 285; 50 L Ed 2d 251 (1976). Therefore, the pro se complaint is to be liberally con strued. Id . The court should view the allegations as true for the purposes of a motion to dismiss

. Maiden , 461 Mich at 119.

Plaintiff submitted three complaints to the trial court: 1) an original complaint, 2) a first amended complaint, and 3) a proposed second amended complaint. Plaintiff filed the original complaint pro per. Plaintiff’s amended and proposed second ame nded complaints were submitted with the assistance of counsel.

The original complaint failed to state the correct cause of ac tion. Instead of pleading an action in contract, plaintiff pl ed an action in condominium law . “Under Michigan law, a covenant constitutes a contract, created by the parties with th e intent to enhance the value of property.” Hickory Pointe Homeowners Ass'n v Smyk , 262 Mich App 512, 515; 686 NW2d 506 (2004) (citations omitted). Here, the bylaws were the terms of a contract by all the members of the homeowners association, with e ach other and with the associ ation itself. Conlin v Upton , 313 Mich App 243, 255; 881 NW2d 511 (2015). Plaintiff also failed to plead the elements of the injunctive relief she requeste d, and to attach supporting docum entation, including a copy of the bylaws she alleged were violate d. Defendant filed a motion for summary disposition moving the court to find that plaintiff failed to state a claim or show th at genuine issues of material fact existed. However, plaintiff’s original complaint allegations w ere clear enough, when construed under our liberal pro se analysis, to state a claim of defendan t having breached its restrictive covenants under the bylaws in two ways: 1) by failing to follow “accounting principles generally-4- accepted in the United States of America,” and 2) by allowing f ences and sheds to be built without a permit. The allegations were also sufficient to give plaintiff the opportunity to offer supporting evidence. Therefore, the court’s decision to deny d efendant summary disposition and order plaintiff to amend the complaint to address the stated ca use of action and other deficiencies
was proper.
Plaintiff’s first amended complaint, although filed with the a ssistance of counsel, still requested an injunction and statutory damages under the MCA. 2 Plaintiff’s counsel admitted at the June 22 summary disposition hearing that he was mistaken as to the MCA’s application and agreed that there was no legal claim under the MCA. Counsel’s explanation for the error was that he “was retained the day before” the amended complaint was due. Plaintiff’s response to defendant’s motion for summary disposition was a three-page mot ion, without accompanying brief, conceding that plaintiff’s claim of accounting and fraud was not viable, and that the MCA did not apply. Plaintiff requested leave to file a second amen ded complaint. Without making a ruling on the motion to amend, the court granted defendant summ ary disposition because plaintiff’s claims were prem ised upon the MCA and defendant was not subject to the terms of the
statute.

Plaintiff’s first amended complaint was drafted by an attorneyand is therefore, held to more stringent standards than the pro se complaint. Estelle , 429 US at 106. Nevertheless, we find that the first amended complaint while inartfully drafted, pled allegations that if accepted as true, pled a breach of the bylaws. We further find that dismis sal at the pleading stage based on form alone and without a review of the merits of plaintiff’s fi rst amended complaint was error. The court should have looked beyond form to determine whether there was any support for plaintiff’s claims or whether a legally cognizable claim existe d. The first amended complaint otherwise contained factual allegations for the court to review . However, even when the merits of plaintiff’s cause of action are analyzed, plaintiff’s first amended complaint still fails to establish a prima facie case. Although the trial court erred, “we decline to reverse because the right result was reached, albeit for the wrong reason.” Scherer v Hellstrom , 270 Mich App 458, 464; 716 NW2d 307 (2006).

Plaintiff’s first amended complaint stated that it was an acti on under the MCA to enjoin defendant from violating its bylaws in two ways: 1) by failing to follow “accounting principles generally accepted in the United States of America,” and 2) by allowing fences and sheds to be built without a permit. Plaintiff additionally claimed that if successful with her claim, she should be awarded statutory damages unde r the MCA. The MCA aside, pla intiff first alleged that the list of itemized accounting expenditures provided by defendant as part of discovery did not

2 Arguably, plaintiff was misled by defendant’s response to the original complaint which began, “The plaintiff filed this action against the condominium associ ation of which she is a member . . .”; as well as defendant’s citation to the MCA in it s affirmative defenses. However, plaintiff should have been aware of the correct legal basis for her complaint allegations before she filed the first amended complaint. Plaintiff’s prior litig ation with defendant resulted in this Court issuing an unpublished opinion in December 2014 that cont ained the applicable law for plaintiff to use to cure the deficiencies in her February 27, 2 015 first amended complaint.-5- explain numerous expen ses and debts, defendant’s certified publ ic accountant did not provide the services defendant told its members were being provided, there was no audit of defendant’s finances, and defendant did not comply with general accounting principles. Plaintiff reasoned that the lack of accounting created an environment where fraud could take place. Plaintiff next alleged that defendant allowed members to install fences and sh eds without approval of defendant’s board. Plaintiff sought an injunction for both vio lations.

Summary dismissal of plaintiff’s first allegation on the merit s would not have been in error. Plaintiff’s claim that defendant’s members needed to be protected from defendant’s fraud was speculation. There was no evidence presented of fraud. Se condly, the first amended complaint and motion in oppositi on of summary disposition exclu ded any reference to the factors for injunctive relief. 3 More importantly, plaintiff’s counsel waived the accounting c laim at the June 22 summary disposition motion hearing. At that hearing, p laintiff’s counsel told the court that he reviewed the financial documents provided by defendant and “found nothing wrong” in regards to the issue of fraud. A party is bound by her attorne y’s waiver. Sampeer v Boschma
, 369 Mich 261, 266; 119 NW2d 607 (1963). Plaintiff was given th e opportunity to speak at the same hearing and did not contradi ct her counsel. Therefore, an y argument related to defendant’s accounting principles is waived on appeal. The Cadle Co v City of Kentwood , 285 Mich App 240, 255; 776 NW2d 145 (2009).

The trial court could have also disposed of plaintiff’s second allegation regarding defendant’s approval of sheds and fences on the merits based on failure to state a claim. The first amended complaint simply alleged that defendant “allowed co owners [sic] to install sheds and fences without approval from the HOA Board as mandated in t he bylaws.” The first amended complaint did not cite which bylaws were allegedly viol ated nor did it allege specific instances of violati on. Plaintiff also failed to attach a copyof the bylaws 4 , which the court would have been able to consi der, on a (C)(8) motion. 5 “[M]ere conclusions, unsupported by allegations of fact, will not suffice to state a cause of actio n.” Eason v Coggins Mem Christian Methodist Episcopal Church , 210 Mich App 261, 263; 532 NW2d 882 (1995). Plaintiff’s sing le conclusory statement alleging a violation, failed to establish a claim that a covenant was violated

3 See Fancy v Egrin , 177 Mich App 714, 719; 442 NW2d 765 (1989) (“In Michigan State Employees Ass’n v. Dep’t of Mental Health , 421 Mich. 152, 157–158, 365 N.W.2d 93 (1984), our Supreme Court listed a four-factor analysis by which to det ermine if a preliminary injunction should issue: 1) the likelihood that the party seeking the inju nction will prevail on the merits; 2) the danger that the party seeking the injunction will suffer ir reparable injury if the injunction is not issued; 3) the risk that the party seeking the injunction w ould be harmed more by the absence of an injunction than the opposing party would be by the granti ng of the relief; and 4) the harm to the public interest if the injunction is issued.”).

4 “If a claim or defense is based on a written instrument, a cop y of the instrument or its pertinent parts must be attached to the pl eading as an exhibit[.]” MCR 2 .113(F)(1).

5 “In a contract-based action, . . . the contract attached to the pleading is considered part of the pleading.” Liggett Rest Group, Inc v City of Pontiac , 260 Mich App 127, 133; 676 NW2d 633 (2003).-6- and a trial court is not required to search for authority to su pport a party’s position. Schadewald v Brule , 225 Mich App 26, 34; 570 NW2d 788 (1997).

Plaintiff did cite legal authorit y for her claim to this Court in her brief on appeal, but this Court’s review is limited to the record before the court at the time of the motion. Peña , 255 Mich App at 313, n 4. Plaintiff cannot expand the record on ap peal. Reeves v Kmart Corp , 229 Mich App 466, 481, n. 7; 582 NW2d 841 (1998). Even when constr ued in a light most favorable to plaintiff, the pleadings in the trial court failed to state a claim upon which relief could be granted. Therefore, it was not error for the trial court to gr ant defendant summary disposition as to both claims.

B. PLAINTIFF’S MOTION FOR LE AVE TO AMEND THE COMPLAINT

MCR 2.118(A)(1) permits a party to “amend a pleading once as amatter of course.” Thereafter, “a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be f reely given when justice so requires.” MCR 2.118(A)(2).

A motion to amend a pleading should ordinarily be granted and s hould be denied only for the following particul arized reasons: ‘[1] undue delay , [2] bad faith or dilatory motive on the part of the movant, [3] repeated failure to cure deficiencies by amendments previously allowed, [4] undue prejudice to the op posing party by virtue of allowance of the amendment, [and 5] futility....’ Weymers v Khera , 454 Mich 639, 654; 563 NW2d 647 (1997), quoting Ben P Fyke & Sons, Inc v Gunter Co , 390 Mich 649, 656; 213 NW2d 134 (1973).

“If a trial court denies a mo tion to amend, it should specifica lly state on the record the reasons for its decision.” Weymers , 454 Mich at 659.

The court did not rule on plaintiff’s motion for leave to file a second amended complaint. “A trial court ‘must specify its reasons for denying [a] motion ’ to amend a complaint, and ‘failure to do so requires reversal, unless amendment would be futile.’ ” Kincaid v Flint , 311 Mich App 76, 95; 874 NW2d 193 (2015) ( citation and quotation ma rks omitted).

We conclude that the trial court’s consideration of plaintiff’ s proposed second amended complaint would have been futile. The motion to amend was not accompanied by a brief explaining the authority on whic h it was based. MCR 2.119(A)(2 ). There was, therefore, no explanation of plaintiff’s numerous attachments of permits and e-mails. Plaintiff’s contention on appeal that documents attached to the second amended complaint alone provided evidence that defendant allowed fences and sheds to be installed in contraven tion to its bylaws is unavailing. The attachments included permits issued by Macomb County to add resses in the Winding Creek subdivision and to other addresses that were not shown to have been in the subdivision. Two permits for locations within the subdivision were for sheds and 42 permits were for fences. Also attached were e-mails a llegedly between defendant’s board membe rs and from board members to homeowners inquiring about install ing a fence or shed on proper ty within the subdivision. There is one one-sentence e-mail stating, “I do not see anything wher e the board approved a shed.” That e-mail does not provide any context as to the inquiry the writer was responding to, the address of the property, or what action if any was taken therea fter. The lone e-mail is-7- insufficient to establish a pri ma facie case that defendant all owed fences and sheds to be installed in violation of the bylaws. In fact, there are numerous other e-mails attached to the proposed second amended complaint where defendant told homeowners their site plans would have to be submitted and approved by defendant’s board.

Further, while the motion for leave to amend stated the MCA wa s not relevant, the proposed second amended complaint relied on the MCA in its stat ement for subject matter jurisdiction. The request for i njunctive relief again failed t o address the factor s for issuing an injunction.

Affirmed.

/s/ Deborah A. Servitto /s/ Cynthia Diane Stephens /s/ Amy Ronayne Krause