Phillips v. Grand Rapids Hous. Comm'n

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SHERRY PHILLIPS, Plaintiff-Appellant, v. GRAND RAPIDS HOUSING COMMISSION, Defendant-Appellee.

No. 363684

Court of Appeals of Michigan

December 21, 2023

UNPUBLISHED

Kent Circuit Court LC No. 21-011165-NO

Before: FEENEY, P.J., and RICK and HOOD, JJ.

PER CURIAM.

Plaintiff Sherry Phillips, appeals as of right the opinion and order of the trial court granting summary disposition to defendant the Grand Rapids Housing Commission (GRHC), and alternatively dismissing her claims for failing to comply with a discovery order. We affirm.

I. BACKGROUND

This case originates from the deactivation of Phillips's apartment key fob. After Phillips became sick, she shared her key fob with her grandson, so he could access her apartment to take care of her. This violated her apartment building's rules and her lease agreement. The facts leading to litigation are largely undisputed.

In mid-September 2018, Phillips moved into the Ransom House Apartments in Grand Rapids, Michigan. In mid-October 2018, she signed a new lease with GRHC (after an apparent error in the "footer" of the previous lease) to live in the Ransom House Apartments, and she appears to have continued to live there on a month-to-month basis after the new lease expired in late October 2019. Phillips still lived in the Ransom Tower Apartment as of January 31, 2022.

Relevant here, when Phillips signed the October 2018 lease, she agreed "to obey the House Rules," which were attached to the lease and "incorporated [t]herein." The House Rules, in turn, contained a provision related to a tenant's use of their keys stating:

LOCKS/KEYS

No tenant shall alter any lock or install a new lock or doorknocker on any door without the written consent of management. Replacement/additional keys must be approved by the Management office and need to be made by our maintenance staff at an additional cost. Key are for resident use only and should not be given to guests or others to use to gain entry to any Housing Commission buildings, apartment, or dwelling units.^[1]

The rules also provided the hours of operation for the apartment building and contact information, including the main office number, the number of the "Resident Assistant[]" for emergency afterhours repairs, and a general number for after-hours emergencies.

In December 2019, Phillips, 68 years old at the time, contracted pneumonia and was unable to leave her apartment. She asked her grandson to help her with errands, shopping, cleaning, and other tasks, so he regularly visited her apartment, sometimes staying the night. Phillips allowed her grandson to use her key fob to enter the apartment building. Phillips could not use her cell phone to let her grandson into the building because it was "off and not working."

Phillips recovered from the pneumonia a few weeks later. On December 23, 2019, however, Phillips discovered that her key fob no longer worked. According to Phillips, she was "locked out" of her apartment from December 23, 2019, through January 8, 2020, as a result. It is uncontested that only her key fob was deactivated. As described below, the lock to her unit's door remained unchanged and she was still able to access the apartment building through a phone app and contacting building personnel. Phillips claimed she was "forced to stay with friends and relatives" and had to pay for food and lodging because she was "locked-out of [her] apartment." On January 6, 2020, Phillips learned that Talima Billups, the apartment building manager, deactivated Phillips's key fob. Phillips stated that she "did not receive any notice of any kind" that her fob was deactivated, nor an explanation for the deactivation.

On January 8, 2020, Phillips met with Billups to discuss the access issue. According to Phillips, Billups produced two written notices, that Phillips claims she never received, indicating that Phillips's key fob would be deactivated because her grandson was using it. Billups assumed that Phillips was using her cell phone to access the building, according to Phillips's affidavit, but Phillips claimed that her phone was "off during this time and was not working." Phillips explained to Billups that she had "no choice but to let her grandson" use the key fob because she was sick and could not "let him into the building using [her] cell phone because it was off and not working." Billups reactivated the key fob on January 8, 2020. Phillips felt that she "should be compensated for the time [she] was denied access to [her] apartment."

In early December 2021, Phillips sued the Ransom Avenue Development Corporation, also known as Ransom Tower Apartments, and GRHC (collectively, defendants), alleging six claims against them: (1) breach of implied warranty against latent defects; (2) breach of implied warranty of quiet use and enjoyment; (3) breach of contract; (4) a combined claim of fraud in the inducement and violation of the Michigan Consumer Protection Act, MCL 445.901 et seq.; (5) breach by constructive eviction; and (6) violation of MCL 600.2918 (unlawful interference with possessory interest). Each claim essentially alleged that defendants disabled her key fob, locking her out of her apartment unit without warning or eviction proceedings, and that, despite notifying them of the problem repeatedly, defendants failed to rectify the issue.

Defendants answered Phillips's complaint in late January 2022, largely denying her allegations. In mid-March 2022 the trial court entered a scheduling order. Relevant here, the court scheduled discovery to close on September 12, 2022.

In early May 2022, GRHC sent interrogatories and its request for production of documents to Phillips. Its discovery requests focused on Phillips's allegations in her complaint and sought information related to her alleged damages. In mid-July 2022, the trial court entered an uncontested order compelling discovery. The order indicated that Phillips had not yet responded to the interrogatories and request for production of documents sent by GRHC in early May 2022. The trial court therefore ordered Phillips to "provide full and complete answers to the pending Interrogatories and provide all of the requested documents within 14 days of the entry of this Order." Fourteen days from July 18, 2022, was August 1, 2022.

Phillips did not provide any discovery responses until August 10, 2022, nine days after the court-imposed deadline in the order compelling discovery responses. GRHC had requested documents relating to the following: documents prepared by, sent, received, maintained, or possessed by Phillips or anyone acting on her behalf relating to the events referenced in her complaint; any documents relating to examinations or treatment by a health care professional regarding potential physical, emotional, or mental-distress type damages; and all documents regarding out-of-pocket expenses, including relocations expenses as referenced in her complaint. Phillips responded to these requests for documents by indicating that she was "gathering these documents and [would] supplement [her] response upon receipt of same." She also refused to produce information about her online activity "without a showing that such items are relevant pursuant to a court order" and would not "release any information with respect to phone records without a court order." GRHC's interrogatories asked, in relevant part, for Phillips to identify any healthcare professionals that had examined or treated her since December 1, 2019. Phillips responded that she was "currently in the process of gathering this information." In other words, Phillips's August 10 response omitted critical discovery that GRHC requested.

In early August 2022, GRHC noticed a deposition for Phillips to take place on August 30, 2022. Phillips and her counsel failed to appear for the deposition and did not contact GRHC's counsel regarding their nonappearance.

In mid-September 2022, GRHC filed two motions: one for summary disposition under MCR 2.116(C)(7)^[2] and (10) and another for dismissal as a discovery sanction. In its dispositive motion, GRHC argued Phillips failed to establish that GRHC breached the lease. By deactivating Phillips's key fob, it asserted, it was simply enforcing the House Rule and protecting the other tenants. GRHC also argued that Phillips breached the lease by sharing her key fob and that even if it breached the lease, Phillips's breach preceded any breach by GRHC and thus precluded her from maintaining a breach-of-contract claim against GRHC. GRHC also argued that the lease (an express contract) barred the implied-contract claims because there could not be an express and implied contract covering the same subject.

GRHC also moved for dismissal of the complaint under MCR 2.313(B) for Phillips's violation of the July 2022 discovery order and her failure to appear for her August 30, 2022 deposition. GRHC argued that Phillip's failure to comply with the discovery order by providing incomplete answers, declining to provide medical authorizations, and "flat out refus[ing] to comply" with the court's July 2022 order, "compromised [its] ability to defend" against Phillips's claims. It further argued that her failure to comply with the discovery order was part of a "pattern of failing to comply with discovery" generally, noting her and her attorney's failure to attend the August 30, 2022 deposition. As of the date of the motion to dismiss, Phillips had not explained why she failed to attend the deposition or provide adequate discovery responses as ordered.

Phillips responded to GRHC's motion to dismiss in early October 2022, denying that she refused to provide documents and indicating she would supplement her responses. She admitted that she and her attorney did not attend her deposition,...