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STATE OF MICHIGAN 

COURT OF APPEALS 

TUSCANY GROVE ASSOCIATION, 

 Plaintiff-Appellant, 

FOR PUBLICATION 

July 14, 2015 

9:10 a.m. 

v No. 320685 

Macomb Circuit Court 

KIMBERLY PERAINO, LC No. 2012-003166-CH 

 Defendant-Appellee. 

Before: HOEKSTRA, P.J., and JANSEN and METER, JJ. 

PER CURIAM. 

 In this dispute relating to the enforcement of condominium bylaws, plaintiff appeals as of 

right the trial court’s order granting summary disposition to defendant based on the 

determination that plaintiff lacked authority to initiate the present action. Because plaintiff failed 

to obtain approval from a supermajority of co-owners before filing suit in violation of the plain 

language of the bylaws and plaintiff’s efforts to obtain approval after the fact failed to comply 

with the voting formalities set forth in the bylaws, we affirm.

 Tuscany Grove Condominium (“Tuscany Grove”) is a condominium complex established 

in Shelby Township, Michigan in 2001 under the Michigan Condominium Act, MCL 559.101, et 

seq; and the Tuscany Grove Association, which has responsibility for administration and 

management of the condominium complex, is incorporated as a nonprofit corporation under the 

Michigan Nonprofit Corporation Act, MCL 450.2201, et seq. Defendant owns one of the 

condominium units in Tuscany Grove. Plaintiff filed the present lawsuit against defendant in an 

effort to compel defendant’s compliance with certain fencing-related restrictions contained 

within the condominium bylaws. However, the trial court granted defendant’s motion for 

summary disposition because plaintiff lacked authority to initiate the present suit. In particular, 

the trial court concluded that plaintiff itself violated the condominium bylaws by failing to obtain 

the requisite approval of a supermajority of owners before incurring legal expenses involved 

with litigation. Plaintiff now appeals as of right. 

 At issue on appeal is the application of a provision in the condominium bylaws requiring 

plaintiff to obtain approval from 66-2/3% of co-owners before incurring any legal expenses 

incident to litigation. Plaintiff disputes the applicability of this provision on appeal. In 

particular, plaintiff contends that, as a matter of contract interpretation, application of this clause 

leads to absurd results when the bylaws are considered as a whole and that, in these 
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circumstances, the provision should not be applied. In addition, plaintiff contends that the clause 

is void because it impermissibly conflicts with the Michigan Condominium Act and the 

Michigan Nonprofit Corporation Act. Finally, plaintiff argues that the trial court should not have 

granted defendant’s motion for summary disposition because plaintiff complied with the 

supermajority requirement, albeit after filing suit, by obtaining the approval of 73.7% of owners 

by way of petitions. Given this approval from co-owners, plaintiff maintains it would be 

contrary to the statutory schemes as well as the bylaws themselves to prevent the co-owners from 

choosing to ratify the litigation against defendant. We disagree with each of these arguments. 

 On appeal, we review de novo a trial court’s decision to grant a summary disposition 

motion. Groves v Dep’t of Corrections, 295 Mich App 1, 4; 811 NW2d 563 (2011). Likewise 

issues involving statutory interpretation, as well as contract interpretation, present issues of law 

which are reviewed de novo. Johnson v QFD, Inc, 292 Mich App 359, 364; 807 NW2d 719 

(2011). 

 Pursuant to the Michigan Condominium Act, the administration of a condominium 

project is governed by the condominium bylaws. MCL 559.153. Bylaws are attached to the 

master deed and, along with the other condominium documents, the bylaws dictate the rights and 

obligations of a co-owner in the condominium. See MCL 559.103(9), (10); MCL 559.108. 

Condominium bylaws are interpreted according to the rules governing the interpretation of a 

contract. See Rossow v Brentwood Farms Dev, Inc, 251 Mich App 652, 658; 651 NW2d 458 

(2002). Accordingly, this Court begins by examining the language of the bylaws. Wiggins v 

City of Burton, 291 Mich App 532, 551; 805 NW2d 517 (2011). Words are interpreted 

according to their plain and ordinary meaning. McCoig Materials, LLC v Galui Const, Inc, 295 

Mich App 684, 694; 818 NW2d 410 (2012). Further, this Court avoids interpretations that would 

render any part of the document surplusage or nugatory, and instead this Court gives effect to 

every word, phrase, and clause. Id. Ultimately, we enforce clear and unambiguous language as 

written. Greenville Lafayette, LLC v Elgin State Bank, 296 Mich App 284, 291; 818 NW2d 460 

(2012). 

 In this case, the provision at issue states: 

(c) Limitations on Assessments for Litigation. The Board of Directors shall not 

have authority under this Article II, Section 2, or any other provision of these 

Bylaws or the Master Deed, to levy any assessment, or to incur any expenses or 

legal fees with respect to any litigation, without the prior approval, by affirmative 

vote, of not less than 66-2/3% of all Co-owners in value and in number. This 

section shall not apply to any litigation commenced by the Association to enforce 

collection of delinquent assessments pursuant to Article II, Section 6 of these 

Bylaws. In no event shall the Developer be liable for, nor shall any Unit owned 

by the Developer be subject to any lien for, any assessment levied to fund the cost 

of asserting any claim against Developer whether by arbitration, judicial 

proceeding, or otherwise. [Emphasis added.] 

By its clear and unambiguous terms, this provision makes plain that the Association’s Board of 

Directors lacks authority “to incur any expenses or legal fees with respect to any litigation” 

without first obtaining approval from a supermajority of co-owners. The only exception to this 
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rule is for cases involving “collection of delinquent assessments,” which is not the underlying 

issue in the present lawsuit. By virtue of this provision, the Board of Directors was without 

authority to hire an attorney or incur any other expenses related to litigation against plaintiff 

aimed at enforcement of fencing restrictions. Given the legal expenses necessarily incident to 

litigation, the effect of this provision is to prevent the Board of Directors from filing suit without 

supermajority approval. Consequently, the trial court properly granted defendant’s motion for 

summary disposition because plaintiff lacked authority to file suit. 

 In contesting the application of this provision, plaintiff does not dispute that the clause 

plainly prevents the Board of Directors from pursuing the present litigation against defendant. 

Instead, plaintiff argues that absurd results will arise if this provision is enforced because, for 

example, it will effectively prevent the Board of Directors from enforcing the bylaws, thereby 

essentially enabling a minority of owners to amend the bylaws by thwarting litigation aimed at 

enforcement. Contrary to these various arguments, there is nothing absurd about requiring 

approval before permitting the Board of Directors to incur potentially extensive legal expenses 

on behalf of the owners. Such a clause functions as nothing more than a reasonable effort to 

protect the owners’ financial interests.1

 See Port Liberte II Condo Ass'n, Inc v New Liberty 

Residential Urban Renewal Co, LLC, 435 NJ Super 51, 65; 86 A3d 730 (2014). The Board of 

Directors may still exercise any of their other enforcement powers under the bylaws and may 

still file suit when appropriate, provided that they obtain approval to incur legal expenses. 

Indeed, if the supermajority prelitigation approval provision is unsatisfactory, the bylaws permit 

amendment and the co-owners thus remain free to amend the bylaws to their liking. Ultimately, 

parties are free to contract as they see fit, Wilkie v Auto-Owners Ins Co, 469 Mich 41, 51; 664 

NW2d 776, 782 (2003), and there is simply no basis for this Court to rewrite the clear and 

unambiguous language of the bylaws. Enforced as written, the provision requires dismissal of 

plaintiff’s lawsuit against defendant because the Board of Directors lacked authority to incur the 

expenses necessary to pursue this litigation. Thus, the trial court properly granted defendant’s 

motion for summary disposition. 

 Aside from the assertion that application of the supermajority provision would lead to 

absurd results, plaintiff argues that it cannot be enforced because it conflicts with the Michigan 

Nonprofit Corporation Act and the Michigan Condominium Act. First, regarding the Nonprofit 

Corporation Act, as noted, the Association has been organized as a nonprofit corporation under 

MCL 450.2101 et seq. As a nonprofit corporation, under MCL 450.2261, the Association 

 

1

 Plaintiff emphasizes that pursuant to MCL 559.206(b) an association may recover litigation 

costs from a co-owner when the association succeeds in litigation against the co-owner. While 

this is true, it is obviously only true if the association prevails in the litigation, meaning it is by 

no means certain that litigation against a co-owner will be cost-free. Any litigation involves a 

certain amount of risk and the by-law provision at issue in this case simply allows co-owners a 

voice in deciding when the financial risks of litigation should be assumed. 
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generally has the power to sue and be sued in the same manner as an individual. In particular, at 

all times relevant to the present dispute,2

 MCL 450.2261 stated: 

(1) A corporation, subject to any limitation provided in this act, in any other 

statute of this state, in its articles of incorporation, or otherwise by law, has the 

power in furtherance of its corporate purposes to do any of the following: 

*** 

(b) Sue and be sued in all courts and participate in actions and proceedings 

judicial, administrative, arbitrative, or otherwise, in the same manner as a natural 

person. 

Given this provision, plaintiff now claims that any limitation on its power to sue must be 

contained in the Association’s Articles of Incorporation and that, therefore, the supermajority 

prelitigation provision in the condominium bylaws is not enforceable. 

 This argument is without merit in light of the plain statutory language. In particular, the 

statute obviously envisions the possibility of limitations on a corporation’s power to sue and it 

specifies that such limitations may be imposed in the corporation’s articles of incorporation, by 

another statute of this state, or “otherwise by law.” MCL 450.2261(1)(b). Further, from the 

statute’s plain language, it is clear that a corporation’s ability to sue may only be exercised in 

“furtherance of its corporate purposes.” MCL 450.2261(1). 

 In this case, as plaintiff notes, the Articles of Incorporation do not expressly place any 

limits on the Association’s ability to sue. However, the supermajority provision is nonetheless 

enforceable because it is clear that the Articles of Incorporation mandate enforcement of the 

condominium bylaws and failure to enforce the voting requirement would be contrary to the 

Association’s corporate purposes. In particular, in relevant part, the Association’s Articles of 

Incorporation provide that the purposes for which the corporation is formed, include: 

(i) To enforce the provisions of the Master Deed and Bylaws of the Condominium 

and of these Articles of Incorporation and such Bylaws and Rules and Regulations 

of this corporation as may hereinafter be adopted; 

(j) To do anything required of or permitted to it as administrator of said 

Condominium by the Condominium Master Deed or Bylaws or by Act No. 59 of 

Public Acts of 1978, as amended[.] 

 

2

 MCL 450.2261(1)(b) has been recently amended, effective January 15, 2015. The parties do 

not, however, address this amendment on appeal. Nor do they address whether the amendment 

should apply retroactively. Given that there has been no argument for the application of the 

newer version of the statute, we thus consider the former version of the statute without making a 

determination regarding the new statute’s retroactive or prospective effect. 
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From these purposes it appears plain that limitations on the power to sue expressed in the 

condominium bylaws are enforceable under the corporate Articles of Incorporation because the 

Association’s corporate purpose is to “enforce” the bylaws and do those things “permitted to it” 

by the bylaws. Indeed, given these express purposes, allowing the Association to sue without 

requiring the supermajority approval demanded in the bylaws would be contrary to the 

Association’s obligation to enforce the bylaws, and thus not “in furtherance” of the Association’s 

corporate purposes as required by MCL 450.2261(1)(b). In sum, the supermajority requirement 

is a permissible limitation on the Association’s power to sue and it does not impermissibly 

conflict with MCL 450.2261(1)(b). 

 Turning to consideration of the Michigan Condominium Act, plaintiff argues that any 

limitation on its authority to sue a co-owner for violation of the bylaws directly conflicts with 

MCL 559.206(a). This provision states: 

A default by a co-owner shall entitle the association of co-owners to the following 

relief: 

(a) Failure to comply with any of the terms or provisions of the condominium 

documents, shall be grounds for relief, which may include without limitations, an 

action to recover sums due for damages, injunctive relief, foreclosure of lien if 

default in payment of assessment, or any combination thereof. [MCL 

559.206(a).] 

 Contrary to plaintiff’s arguments, while this provision recognizes that an association 

might pursue an action for damages or injunctive relief against a co-owner, it does not prohibit 

co-owners from choosing to limit this authority to instances in which a supermajority of owners 

deem the litigation worth pursuing. That is, the statute mandates that an owner’s failure to 

comply with condominium documents “shall be grounds for relief,” but it does not dictate under 

what circumstances an association must pursue that relief. For example, the statute does not 

require the Association to pursue relief, it does not specify who should make the determination 

to pursue such litigation, and it certainly does not prohibit the adoption of a supermajority 

requirement designed to protect owners from the potentially expensive risks involved with 

litigation.3

 To the contrary, elsewhere the Michigan Condominium Act specifies that the 

 

3

 Further, while MCL 559.206(a) includes the language “without limitations,” it does so in 

reference to the relief available, not in reference to an association’s authority to pursue such 

relief. In other words, the types of relief identified in the statute are meant to serve an 

illustrative, inclusive purpose, rather than to represent an exhaustive list of the relief available to 

an association. Indeed, the statute goes on to provide that relief may also include “other 

reasonable remedies the condominium documents may provide including but without limitation,” 

fines or late fees. MCL 559.206(c). In no way does the statute suggest that a condominium 

association enjoys an unlimited, unconditional authority to sue its owners. Such an interpretation 

would be ridiculous given that every litigant faces limits in litigation including, for example, 

statutes of limitations, pleading requirements, rules of evidence, etc. Instead, the “without 
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“administration of a condominium project shall be governed by bylaws,” MCL 559.153, and the 

bylaws may contain any provision “deemed appropriate for the administration of the 

condominium project not inconsistent with this act or any other applicable law.” MCL 

559.156(a). A rule specifying who should have the authority to make a decision to pursue 

litigation is clearly a matter relating to the administration of the condominium project such that it 

is properly regulated by the bylaws without causing a conflict with MCL 559.206(a). 

 Finally, plaintiff asserts that the trial court should not have granted defendant’s motion 

for summary disposition because plaintiff complied with the supermajority requirement by 

obtaining the approval of 73.7% of owners by way of petitions.4

 In effect, plaintiff suggests that 

its belated efforts to seek approval should serve as a ratification of the Board of Directors 

decision to file suit, and plaintiff argues it would be contrary to the statutory schemes as well as 

the bylaws themselves to prevent the co-owners from choosing to ratify the litigation against 

defendant. 

 As a general principle, when an actor exceeds his or her authority, his or her actions may 

be ratified after the fact. See David v Serges, 373 Mich 442, 444; 129 NW2d 882 (1964). 

“Ratification is the affirmance by a person of a prior act which did not bind him but which was 

done or professedly done on his account, whereby the act, as to some or all persons, is given 

effect as if originally authorized by him.” Id. (citation omitted). To ratify an act, the acts must 

be such that it might have been legally authorized in the first instance. See Barrow v Detroit 

Election Comm, 305 Mich App 649, 675; 854 NW2d 489 (2014). “If formalities are required for 

the authorization of an act, the same formalities are required for ratification.” Restatement 

(Third) Of Agency § 4.01 (2006), comment e. 

 In this case, the prelitigation voting provision in the bylaws requires “approval, by 

affirmative vote, of not less than 66-2/3% of all Co-owners in value and in number.” Typically, 

as discussed in Article VIII of the condominium bylaws, the bylaws envision voting at a meeting 

at which a quorum of co-owners is present. Action may be taken outside a meeting, provided 

that it occurs as set forth in Article IX, Section 8 of the bylaws, which states: 

Action Without Meeting. Any action which may be taken at a meeting of the 

members (except for the election or removal of Directors) may be taken without a 

meeting by written ballot of the members. Ballots shall be solicited in the same 

manner as provided in Section 5 for the giving of notice of meetings of members. 

Such solicitations shall specify (a) the number of Reponses needed to meet the 

limitations” language is properly read in reference to the relief available which may include, but 

is not limited to, actions for damages, injunctive relief, etc. 

4

 On appeal, defendant contests plaintiff’s assertion that it obtained approving petitions from 

73.7% of owners. However, plaintiff provided the trial court with an affidavit from the property 

manager for Tuscany Grove to support this assertion. Given that this is a motion for summary 

disposition, this documentary evidence must be viewed in a light most favorable to plaintiff. See 

Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996); MCR 2.116(G)(5). 

Viewed in this light, contrary to defendant’s arguments, there is support for plaintiff’s claim that 

it belatedly obtained petitions from a supermajority of co-owners approving the litigation. 
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quorum requirements; (b) the percentage of approvals necessary to approve the 

action; and (c) the time by which ballots must be received in order to be counted. 

The form of written ballot shall afford an opportunity to specify a choice between 

approval and disapproval of each matter and shall provide that, where the member 

specifies a choice, the vote shall be cast in accordance therewith. Approval by 

written ballot shall be constituted by receipt within the time period specified in 

the solicitation of (i) a number of ballots which equals or exceeds the quorum 

which would be required if the action were taken at a meeting; and (ii) a number 

of approval which equals or exceeds the number of votes which would be 

required for approval if the action were taken at a meeting at which the total 

number of votes cast was the same as the total number of ballots cast. 

 Considering these requirements for action outside of a meeting, the petitions collected by 

the Association did not serve to ratify the litigation against defendant because the petitions did 

not satisfy the formalities necessary to authorize litigation through an affirmative vote. In 

particular, there was no meeting in this case and, contrary to the requirements for taking action 

without a meeting, the petitions circulated in this case did not indicate: “(a) the number of 

Reponses needed to meet the quorum requirements; (b) the percentage of approvals necessary to 

approve the action; and (c) the time by which ballots must be received in order to be counted.” 

Further, the petition simply had a space for owners to sign their name in approval, it was not a 

ballot which afforded owners “an opportunity to specify a choice between approval and 

disapproval of each matter,” and the petition did not state that “where the member specifies a 

choice, the vote shall be cast in accordance therewith.” Moreover, there is no indication 

regarding how the petitions were circulated or whether the method of soliciting the petitions 

complied with Section 5. 

 In sum, plaintiff failed to comply with the formalities necessary to obtain an affirmative 

vote as required by the prelitigation supermajority requirement. Because plaintiff failed to 

comply with these formalities, the belated petitions were not sufficient to ratify the litigation 

against defendant. See Restatement (Third) Of Agency § 4.01 (2006), comment e. Thus, 

because plaintiff lacked authority to pursue this litigation, the trial court properly granted 

defendant’s motion for summary disposition.5

 

5

 In the alternative, defendant argues for the first time on appeal that collateral estoppel should 

control resolution of this case because plaintiff was a party to another lawsuit against another coowner in which the exact same supermajority prelitigation requirement was interpreted to 

prevent plaintiff from pursuing litigation without supermajority approval. See Tuscany Grove 

Association v Gasperoni, unpublished per curiam opinion of the Michigan Court of Appeals, 

issued June 24, 2014 (Docket No. 314663). However, Gasperoni was not decided by this Court 

until after the trial court decided the present case, meaning that there was no final decision in 

place at the time summary disposition was granted, as required to invoke collateral estoppel. See 

Leahy v Orion Twp, 269 Mich App 527, 530; 711 NW2d 438 (2006). Indeed, defendant failed to 

raise the issue of collateral estoppel in the trial court, and by failing to include collateral estoppel 

and supporting facts in her first responsive pleading, defendant waived this affirmative defense. 
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 Affirmed. 

/s/ Joel P. Hoekstra 

/s/ Kathleen Jansen 

/s/ Patrick M. Meter 

See MCR 2.111(F)(3); Harris v Vernier, 242 Mich App 306, 312; 617 NW2d 764 (2000). In 

short, given plaintiff’s failure to raise this argument below, we decline to decide the present case 

on the basis of collateral estoppel.