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### STATE OF MICHIGAN

COURT OF APPEALS

ROGER WILDBAHN and RUTH WILDBAHN,

Plaintiffs-Appellants, UNPUBLISHED March 15, 2016

v No. 324517 Kent Circuit Court KMG PRESTIGE, INC., d/b/a BRETON VILLAGE APARTMENTS, LC No. 13-008157-NO

Defendant-Appellee.

Before: M ETER , P.J., and B OONSTRA and R IORDAN , JJ.

P ER C URIAM

. Plaintiffs Roger and Ruth Wildbahn 1 appeal as of right the trial court’s grant of summary disposition in favor of defenda nt KMG Prestige, Inc., in this s lip and fall case. We affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On December 29, 2011, at approximately 9:00 a.m., Roger and hi s neighbor, Sandra Price, exited plaintiffs’ first-floor apartment at Breton Villa ge Apartments through the back patio door. To reach Roger’s vehicle, which was parked in a rear par king lot, Roger and Price walked on paver blocks leading from plaintiffs’ back patio to a mulche d area surrounding a paved courtyard. They continued through the mulch, walking between s hrubs and a bench, in order to cross the courtyard, which included shuffleboard courts and ben ches for the tenants’ recreation. As they walked, Price and Roger both noticed a patch of ice nea r the bench closest to plaintiffs’ patio blocks. This ice was visible from up to 15 feet away.

When Roger and Price returned to the apartment complex, Price w alked ahead of Roger on the same path that they took out of the building. Both were carrying groceries. As Price turned to warn Roger to avoid the ice that they had seen previo usly, she watched him slip and fall on that ice. Roger suffered a broken leg.

1 In the interest of clarity, we will refer to the plaintiffs by their first names when referring to them individually in this opinion.-2- In August 2013, plaintiffs filed a complaint, alleging claims a rising from common law negligence and statutory violations under MCL 554.139. 2 Defendant moved for summary disposition under MCR 2.116(C)(10), asserting, inter alia , that the open and obvious danger doctrine barred plaintiffs’ common law negligence claim and tha t plaintiffs could not demonstrate a violation of MCL 554.139. In response, plaintiff s asserted that a genuine issue of material fact existed as to the intended use of the courtyard a nd as to whether defendant failed to keep the courtyard fit for th is use pursuant to MCL 554.139. P laintiffs did not address the merits of their common law negligence claim. Additionally, plaintiffs attached a proposed amended complaint as an exhibit to their response to defendant’s motion for summary disposition, but they did not separately move for leave to file an amended complaint at that time.

The trial court granted defendant’s motion for summary disposi tion. Consistent with plaintiffs’ agreement at the sum mary disposition hearing to dis miss the common law negligence claim and proceed on the statutory claim, the trial court held that the open and obvious danger doctrine barred plaintiffs’ common law negligence claim. Addit ionally, it held that even if it assumed that the intended purpos e of the courtyard was to provi de an alternate route for accessing the parking lot, plaintiffs could not establish that the courtyard was not fit for its intended purpose. It noted that Roger and Price had utilized t he same path earlier that morning, and that Price had successfully navigated the courtyard using t he exact same path as plaintiff without falling. The trial court also rejected plaintiffs’ cla im that the parties contractually altered defendant’s statutory obligation through the lease because the complaint did not include a breach of contract claim. Finally, th e trial court did not consider p laintiffs’ proposed amended complaint because (1) plaintiffs never moved for leave to file it and (2) plaintiffs did not attach the lease agreement to the propos ed amended complaint as requir ed by MCR 2.113(F)(1).

Plaintiffs subsequently filed a motion for reconsideration of t he trial court’s grant of summary disposition in conjunction with a motion to file an ame nded complaint. The trial court denied the motion for reconsideration on the grounds that plain tiffs could not demonstrate a palpable error. The trial court also denied plaintiffs’ motion to file an amended complaint, reasoning that the issue was moot.

II. SUMMARY DISPOSITION

Plaintiffs first argue that the trial court erred in granting s ummary disposition in favor of defendant with regard to their statutory claim under MCL 554.13 9(1)(a). We disagree.

A. STANDARD OF REVIEW

We review de novo a trial court’s grant or deni al of summary disposition. Moraccini v Sterling Hts , 296 Mich App 387, 391; 822 NW2d 799 (2012). When reviewing a motion for summary disposition pursuant to MCR 2.116(C)(10), we may only c onsider, in the light most favorable to the party opposing the motion, the evidence that w as before the trial court, which

2 Plaintiff Ruth only alleged a loss of consortium claim, which was derivative to Roger Wildbahn’s claims.-3- consists of “the ‘affidavits, together with the pleadings, depo sitions, admissions, and documentary evidence then filed in the action or submitted by t he parties.’ ” Calhoun Co v Blue Cross Blue Shield Michigan , 297 Mich App 1, 11; 824 NW2d 202 (2012), quoting MCR 2.116(G)(5). Under MCR 2.116(C)(10), “[s]ummary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Latham v Barton Malow Co , 480 Mich 105, 111; 746 NW2d 868 (2008). “There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP , 481 Mich 419, 425; 751 NW2d 8 (2008).

B. ANALYSIS

It is undisputed that the area in which Roger fell was a commo n area. Accordingly, plaintiffs’ claims are limited to defendant’s statutory duty to maintain the premises under MCL 554.139(1)(a), 3 which provides, “In every lease or license of residential prem ises, the lessor or licensor covenants . . . [t]hat the premises and all common are as are fit for the use intended by the parties.” Thus, given the unc ontested nature of the area, our inquiry turns to identifying the intended use of the courtyard and whether it was fit for that u se. See MCL 554.139(1)(a). Even if we assume, without deciding, 4 that the courtyard was intended to be used as an alternate rou te for accessing the parking lot, plaintiffs have not established the existence of a genuine issue of material fact as to whether t he courtyard was unfit for that pu rpose.
MCL 554.139(1)(a) creates a duty of fitness. “[F]it for the us e intended by the parties” means that the common area must be adapted or suited for the purpose intended by the parties. Allison , 481 Mich at 429. In Allison , the plaintiff argued that an apartment parking lot was not fit for its intended purpose based on two facts: (1) the lot wa s covered with two inches of snow, and (2) the plaintiff fell. Id. at 430. In rejecting the plaintiff’s claims, the Michigan Sup reme Court explained:

The statute does not require a lessor to maintain a lot in an i deal condition or in the most accessible condition possible, but merely requires the lessor to maintain it in a condition that renders it fit for use as a parking lot. Mere inconvenience of access, or the need to remove snow and ice from parked cars, wi ll not defeat the characterization of a lot as be ing fit for its intended purpose s. [ Id .]

3 A landlord’s stat utory duty under MCL 554.139(1)(b) does not a pply to common areas. Allison , 481 Mich at 432. Additionally, we recognize that “the open a nd obvious danger doctrine does not bar [a] plaintiff’s clai m against [a] defendant for vi olating its statut ory obligation under MCL 554.139(1)(a).” Benton v Dart Properties, Inc , 270 Mich App 437, 445; 715 NW2d 335 (2006).

4 The trial court similarly operated under this assumption when it decided defendant’s motion for summary disposition.-4- Subsequently, we have held tha t the principles set forth in Allison apply to all common areas. Hadden v McDermitt Apartments, LLC , 287 Mich App 124, 130; 782 NW2d 800 (2010). Accordingly, a landlord is neither required to provide perfect maintenance nor ensure “the most accessible condition possible” in order to fulfill its duties o n the statute. Id

. In this case, the evidence presented with defendant’s motion fo r summary disposition and plaintiffs’ response established that Price and Roger were able to walk through the courtyard, consciously avoiding the ice, within two hours of Roger’s fall. Roger admitted that he and Price used the same path through the courtyard when they returned to plaintiffs’ apartment with their groceries, at which time Price walked through the courtyard wit hout any issues. The evidence also indicates that numerous other people were able to safely w alk through the c ourtyard in order to assist Roger after his fall—including, among others, Jesse T reece, Ruth, Beverly McCondra, and EMS personnel—which plainly demonstrates that multiple indi viduals were able to use the courtyard for its intended purpose within minutes of the incide nt. The patch of ice was small in comparison to the rest of the courtyard, and the rest of the ar ea did not have snow or ice on it. The ice was clearly visible to R oger before the fall and to ind ividuals standing as much as 15 feet away after the fall. There is nothing in the record supporting the conclusion that the presence of the ice patch denied Roger reasonable access to his apartment f rom the parking lot, even though the courtyard was not in an “ideal condition.” Allison , 481 Mich at 430. Again, perfect maintenance is not required under MCL 554.139(1)(a), and a land lord is not required to maintain a common area “in the most accessible condition possible.” Hadden , 287 Mich App at 130.

In addition, Roger only needed to take a slightly different pat h through the remaining portion of the courtyard, which was undisputedly clear, in orde r to reach his patio. Changing his path would have constituted a mere inconvenience, and a “mere i nconvenience” posed by a small patch of ice does not render the courtyard unfit for walking. See Allison , 481 Mich at 430. Cf. Hadden , 287 Mich App at 132 (finding that “black ice on a darkly lit, unsalted stairway,” which may have been caused or increased by overflowing water from nea rby gutters,” posed a hidden danger that was greater than a “mere inconvenience”); Benton v Dart Properties, Inc , 270 Mich App 437, 438, 444; 715 NW2d 335 (2006) (concluding that a sidew alk that was “ covered with ice” approximately four to five feet long with no lighting to i lluminate the ice was not fit for walking, i.e. , the use intended by the parties [emphasis added]). Therefore , like the plaintiff in Allison , plaintiffs have failed to establish a genuine issue of materi al fact as to whether the courtyard was unfit for its intended use of providing an altern ate route between the apartment building and the parking lot, as the only facts presented by pl aintiffs to show that the common area was unfit for its intended purpose were the facts that (1) there was ice in an isolated portion of the courtyard and (2) Roger fe ll on this single patch of ice . See Allison , 481 Mich at 430.

Next, plaintiffs argue that the parties modified defendant’s s tatutory duty so that defendant had a higher duty under the lease agreement to keep t he courtyard “safe,” not only “fit for its intended purpose,” as required by MCL 554.139(1)(a). W e disagree. MCL 554.139(2) provides that “parties to the lease . . . may modify the obliga tions imposed by this section where the lease . . . has a current term of at least 1 year .” (Emphasis added.) If the statutory language is plain and unambiguous, we must apply it as written. Ford Motor Co v Woodhaven , 475 Mich 425, 438-439; 716 NW2d 247 (2006). The only lease presented in the trial court stated that (1) “[t]he initial term” of the agreement begins on October 24, 200 8, and ends on September 30, 2009, and that (2) “the [a]greement will continue for successiv e terms of one month each unless-5- automatically terminated” as provided in the lease. Thus, beca use Roger’s fall occurred on December 29, 2011, at which time th e current lease term was mon th-to-month (bas ed on the only lease proffered by plaintiff), th e language in the lease did no t modify defendant’s duty to keep the courtyard fit for the use intended by the parties under MCL 554.139(1)(a). Therefore, the standard used by the trial court was proper.

Plaintiffs also appear to argue that defendant owed them a dut y to remove the ice or provide a warning about the ice because it was not a natural ac cumulation. They assert that defendants proffered no evidence that the ice was a natural acc umulation, and they contend, without citing any evidence in the lower court record, that “th e logical conclusion is that this was snow that had melted after not being properly removed and had r e-frozen.” In support of this claim, plaintiffs cite two opini ons in governmental liability c ases—one of which was a dissenting opinion in a case that was later overruled—and they fail to exp lain how those unrelated cases apply to defendant’s statutory duty in this case. Moreover, ev en if the source of the ice was dispositive here, plaintiffs p roffer only speculation, and iden tify no evidence in the record, in support of their assertion that t he ice was not a natural accum ulation. Thus, we deem this argument unsupported and, therefore, abandoned. See Peterson Novelties, Inc v City of Berkley

, 259 Mich App 1, 14; 672 NW2d 351 ( 2003) (“An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give issues cursory treatment with little or no citation of sup porting authority. Argument must be supported by citation to appropriate authority or policy. An a ppellant’s failure to properly address the merits of his assertion of error constitutes abando nment of the issu e.” [Citations omitted.]).

III. MOTION TO FILE AN AMENDED COMPLAINT

Finally, plaintiffs argue that the trial court erred when it d enied, contrary to MCR 2.116(I)(5), their motion to file an amended complaint after it granted defendant’s motion for summary disposition pursuant t o MCR 2.116(C)(10). We disagree.

A. STANDARD OF REVIEW

A trial court’s denial of a mo tion to amend is reviewed for an abuse of discretion. Diem v Sallie Mae Home Loans, Inc , 307 Mich App 204, 215-216; 859 NW2d 238 (2014), citing Wormsbacher v Seaver Title Co , 284 Mich App 1, 8; 772 NW2d 827 (2009). “An abuse of discretion occurs when the trial court chooses an outcome falli ng outside the range of principled outcomes.” Edry v Adelman , 486 Mich 634, 639; 786 NW2d 567 (2010).

B. ANALYSIS

As an initial matter, we note that plaintiffs fail to dispute t he basis of the trial court’s ruling, which was that the issue was moot. When a party fails to address the basis of the trial court’s decision, this Court “need not even consider granting . . . the relief [sought].” Joerger v Gordon Food Serv, Inc , 224 Mich App 167, 175; 568 NW2d 365 (1997).

Nevertheless, even in reviewing the merits of plaintiffs’ claim , we conclude that the trial court properly denied plaintiffs’ motion to amend their complai nt. MCR 2.116(I)(5) provides, “If the grounds asserted [for summ ary disposition] are based on subrule (C)(8), (9), or (10), the-6- court shall give the parties an opportunity to amend their plea dings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would not be justified.” “MCR 2.118(A)(2) provides that ‘[e]xcep t as provided in subrule (A)( 1), a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires.’ ” Wormsbacher , 284 Mich App at 8 (alteration in original; citation omitted). “[I]n ordinary cases, motions to amend are generally granted.” Diem , 307 Mich App at 216, citing Lane v KinderCare Learning Ctrs, Inc , 231 Mich App 689, 697; 588 NW2d 715 (1998). Likewise, “[b]ecause a court should freely grant leave to amend a complaint when justice so requires, a motion to amend should ordinarily be den ied only for particularized reasons.” Wormsbacher , 284 Mich App at 8. “Reasons that justify denying leave to am end include undue delay, bad faith or dilatory motive, repeated fai lure to cure deficiencies by amendments previously allowed, u ndue prejudice to the defendant , or futility.” Id . “An amendment would be futile if it is legally insufficient on its face, and the addition of allegations that merely restate those allegations already made is futile.” Id . at 8-9; see also Lane , 231 Mich App at 697 (“An amendment is futile if it merely restates the a llegations already made or adds allegations that still fail to state a claim.”).

Plaintiffs’ amendment was futile. First, the proposed amended complaint merely restated the allegations already made. The only differences were: (1) the addition of two paragraphs concerning defendant’s alleged dut y to maintain the common area s in a “safe” condition under the lease (which included an additional parenthetical phrase in an attempt to plead an exception to the requirement that the lease had to be attached under MCR 2.113(E)); (2) an alteration in the heading of count one to indicate “ contractual and statutory violations” instead of “ negligence and statutory violations” (emphasis added); and (3) a handful of im material word changes. Except for these modifications, the text of the original compla int and the proposed amended complaint were practically identical. Most significantly, as d iscussed supra , plaintiffs’ addition of the language in the lease to the complaint would not change defendant’s obligation under the statute from “fit for its intended use” to “safe” because the c urrent lease term was month-tomonth. Accordingly, plaintiffs’ additional claim arising from the language in the lease lacked merit, rendering the amendment futile.

Thus, the trial court did not abuse its discretion in denying p laintiffs’ motion to file an amended complaint. See Edry , 486 Mich at 639. 5

5 The trial court denied plaintiffs’ motion on the basis that th e issue was moot in light of the procedural history of the case. In so ruling, it appears that the trial court failed to consider MCR 2.116(I)(5) and MCR 2.118 in making its ruling. Nevertheless, “[a] trial court’s ruling may be upheld on appeal where the right result issued, albeit for the wrong reason.” Gleason v Michigan Dept of Transp , 256 Mich App 1, 3; 662 NW2d 822 (2003).-7- IV. CONCLUSION

The trial court properly granted defendant’s motion for summary disposition under MCR 2.116(C)(10) and properly denied p laintiffs’ motion to amend th eir complaint.

Affirmed.

/s/ Patrick M. Meter /s/ Mark T. Boonstra /s/ Michael J. Riordan