Romig v. Boulder Bluff Condo. Units 73-123, 125-146, Inc.

998 N.W.2d 715

344 Mich.App. 1

ESTATE OF Robert J. ROMIG, BY Bobbie Jo KOOMAN, Personal Representative, and Terry Romig, Plaintiffs-Appellants,

v.BOULDER BLUFF CONDOMINIUMS UNITS 73-123, 125-146, INC., doing business as Boulder Bluff Estates Condominium Association, and Gerow Management Company, Inc., Defendants-Appellees.

Estate of Robert J. Romig, by Bobbie Jo Kooman, Personal Representative, and Terry Romig, Plaintiffs-Appellants,

v.Boulder Bluff Condominiums Units 73-123, 125-146, Inc., doing business as Boulder Bluff Estates Condominium Association, "Boulder Bluff Estates Condominium Association," and Gerow Management Company, Inc., Defendants-Appellees.

No. 347653, No. 348254

Court of Appeals of Michigan.

Submitted July 7, 2022, at Lansing.

Decided October 27, 2022, 9:00 a.m.

Ottawa Circuit Court, LC No, 18-005518-NO, Jon H. Hulsing, J.

Zelmanski, Danner & Fioritto, PLLC, Plymouth (by Melissa D. Francis and Richard L. Wagner, Jr.) for Bobbie Jo Kooman, as personal representative of the estate of Robert J. Romig, and Terry Romig.

Secrest Wardle, Grand Rapids (by Drew W. Broaddus and Amanda B. Fopma) for Boulder Bluff Condominiums Units 73-123, 125-146, Inc.

Bosch Killman VanderWal, PC, Grand Rapids (by Joseph P. VanderVeen) for Gerow Management Company, Inc. Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, B. Eric Restuccia, Deputy Solicitor General, and Ron D. Robinson, Assistant Attorney General, for the Michigan Civil Rights Commission and the Michigan Department of Civil Rights, Amici Curiae.

Steve Tomkowiak for the Fair Housing Center of West Michigan, the Fair Housing Center of Southwest Michigan, the Fair Housing Center of Southeast and Mid Michigan, and the Fair Housing Center of Metropolitan Detroit, Amici Curiae.

Before: Letica, P.J., and K. F. Kelly and Redford, JJ.

ON REMAND

Per Curiam.

₃These cases return to us on remand from the Michigan Supreme Court. Plaintiffs, Bobby Jo Kooman, as personal representative for the estate of Robert J. Romig, and Terry Romig, brought suit in state court against defendants, Gerow Management Company, Inc., and Boulder Bluff Condominiums Units 73-123, 125-146, Inc., doing business as Boulder Bluff Estates Condominium Association, alleging violations₄ of the Persons with Disabilities Civil Rights Act (the PWDCRA), MCL 37.1101 et seq.¹ In a published, per curiam opinion, we affirmed the trial court’s order granting partial summary disposition under MCR 2.116(C)(8) and (C)(10) in favor of defendants because, having already completed a "real estate transaction" before the claims at issue arose, plaintiffs did not have a cause of action under the PWDCRA. Romig Estate v Boulder Bluff Condos Units 73-123, 125-146, Inc, 334 Mich App 188, 197-204, 964 NW2d 133 (2020).

In lieu of granting plaintiff’s application for leave to appeal, the Michigan Supreme Court vacated this Court’s opinion and remanded the case to us "to address the issue of whether the state court proceedings in this matter are barred by collateral estoppel" because of issues determined in collateral proceedings previously brought by plaintiffs in federal district court. Kooman v Boulder Bluff Condos Units 73-₆123, 125-146, Inc, 509 Mich 1043, 1043 (2022). We now conclude that the state court proceedings under the PWDCRA are barred by collateral estoppel and, therefore, affirm the orders of the trial court granting partial summary disposition in defendants’ favor.

I. BASIC FACTS AND PROCEDURAL HISTORY

This case stems from the decision made by defendants to deny Terry and Robert Romig’s request to install a handrailing alongside their front porch stairs outside of their condominium unit. Although defendants eventually approved the request after approximately two months, Robert fell down the stairs twice in the interim. Plaintiffs initially brought suit in federal ₅court, alleging state and federal causes of action. The federal district court did not take supplemental jurisdiction over the state-law claims. It did ultimately conclude, however, that defendants did not violate the Fair Housing Act, 42 USC 3601 et seq., because plaintiffs could not establish that the delay between the first request for the railing and defendants’ eventual approval was unreasonable. Kooman v Boulder Bluff Condos, Units 73-123, 125-146, Inc, 2020 WL 616352, unpublished opinion of the United States District Court for the Western District of Michigan, issued February 10, 2020 (Case No. 1:18-CV-637), pp. 12-22. The United States Court of Appeals for the Sixth Circuit affirmed. Kooman v Boulder Bluff Condos, 833 F Appx 623 (CA 6, 2020).

While plaintiffs litigated their federal cause of action in the federal district court, plaintiffs brought suit in state court alleging state-law violations of the PWDCRA and the Condominium Act, MCL 559.101 et seq. The trial court granted partial summary disposition under MCR 2.116(C)(8) in favor of defendants, concluding plaintiffs failed to state a claim because defendants could not violate the PWDCRA unless the alleged discriminatory act was done in connection with a real estate transaction. Because plaintiffs had already obtained their interest in the condominium at the time the request for the railing was denied, defendants’ decision was not made in connection with a real estate transaction. This Court affirmed. Estate of Romig, 334 Mich App at 197-204, 964 N.W.2d 133.

Plaintiffs then sought leave to appeal in the Michigan Supreme Court which, in lieu of granting the application, first remanded the case back to the trial court for findings of fact on the issue of whether plaintiffs’ state-law claims were barred by collateral estoppel. Kooman v Boulder Bluff Condos Units 73- 123, 125-146, Inc, 509 Mich 867, 970 N.W.2d 350 (2022). After the trial court submitted its findings, the Michigan Supreme Court vacated this Court’s opinion and remanded the case to us to consider the issue in light of the trial court’s findings of fact. Kooman, 509 Mich. at 1043, 974 N.W.2d 826.

II. DISCUSSION

[1–6] Operation of collateral estoppel presents a question of law. Rental Props Owners Ass’n v Kent Co Treasurer, 308 Mich App 498, 526, 866 NW2d 817 (2014). "Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in that prior proceeding." Id. at 528, 866 N.W.2d 817. For collateral estoppel to bar plaintiffs’ claims under the PWDCRA, the following three elements must be met: "(1) a question of fact essential to the judgment must have been actually litigated and determined by a valid and final judgment; (2) the same parties must have had a full and fair opportunity to litigate the issue; and (3) there must be mutuality of estoppel." William Beaumont Hosp v Wass, 315 Mich App 392, 398, 889 N.W.2d 745 (2016) (quotation marks and citation omitted). "This doctrine is strictly applied in that the issues in both cases must be identical, and not merely similar." Keywell & Rosenfeld v Bithell, 254 Mich App 300, 340, 657 N.W.2d 759 (2002) (quotation marks, citation, and brackets omitted). "The previous litigation must have presented a ‘full and fair’ opportunity to litigate the issue presented in the subsequent case." Id. (citation omitted). Lastly,

[m]utuality of estoppel requires that in order for a party to estop an adversary from relitigating an issue that party must have been a party, or in privy to a party, in the ₇previous action. In other words, the estoppel is mutual if the one taking advantage of the earlier adjudication would have been bound by it, had it gone against him. [Monat v State Farm Ins Co, 469 Mich. 679, 684-685, 677 N.W.2d 843 (2004) (quotation marks, citations, and brackets omitted).]

[7] The only element of collateral estoppel that is at issue here is the first, i.e., whether questions of fact essential to plaintiffs’ PWDCRA claims have already been actually litigated and determined by a valid and final judgment in the federal litigation. In the first count of their state court complaint, plaintiffs alleged defendants had violated the PWDCRA "by unreasonably denying and causing an unreasonable delay, failure, and refusal to permit Plaintiffs to make a reasonable disability modification, at their own expense, to their residence (Unit) which they owned and/or occupied at all relevant times." As relevant to this count, the federal district court stated:

The period between the June 17th request and the August 23rd approval was not unreasonable. The starting point is what Plaintiffs provided to the housing provider. Here, the nondescript email that Ms. Kooman sent to Ms. Biegalle on June 17th made no mention of her father. Indeed, it provided no reason at all for the railing request. And regardless of what Ms. Kooman may have told Ms. Biegalle before sending the email, Ms. Kooman’s deposition testimony establishes that she knew, after speaking with Ms. Biegalle, that she had to submit a written request to the Boulder Bluff Estates Board of Directors. Accordingly, Ms. Kooman herself contributed to much of the delay by failing to provide a complete picture when she first submitted her request to the Board of Directors. True, Ms. Kooman did mention her father in the June 28th email, but that email is nebulous at best. It mentions only a fall, and Ms. Kooman’s belief that the railing would prevent injuries. It says nothing about her fa

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