KIRK LEAPHART V H&H PROPERTY MANAGEMENT CO
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STATE OF MICHIGAN
COURT OF APPEALS
KIRK LEAPHART,
UNPUBLISHED
November 30, 2001
Plaintiff-Appellant,
v
No. 225006
Wayne Circuit Court
LC No. 99-923719-CZ
H & H PROPERTY MANAGEMENT
COMPANY,
Defendant-Appellee.
Before: Whitbeck, P.J., and Neff and Hoekstra, JJ.
PER CURIAM.
Plaintiff Kirk Leaphart appeals of right from the trial court’s order granting defendant
H&H Property Management Company’s motion for summary disposition. We decide this appeal
without oral argument pursuant to MCR 7.214(E). We affirm.
I. Basic Facts And Procedural History
Leaphart, who has a disability not necessarily visible on casual inspection by others,
decided to apply for an apartment at a complex H&H managed. Accordingly, Leaphart went to
the management office at the complex and obtained an application for tenancy. He also obtained
a form on which a physician would certify his disability for the application process. Leaphart
returned to the management office the following day, at which time he presented the tenancy
application requesting a two-bedroom apartment to accommodate him and living space for his
aunt, who acted as his housekeeper. Leaphart, who did not have a completed physician’s
certificate, secretly taped a discussion with H&H employee Thelma Fever. Fever reviewed the
application but was suspicious about Leapheart’s need to have a second bedroom for a
housekeeper because, apparently, the previous day he had not mentioned that his aunt was also
his housekeeper. In language peppered with expletives, Fever expressed incredulity that a sixtyyear-old woman was Leaphart’s housekeeper.
When H&H rejected his application, Leaphart filed this action seeking damages under the
Persons With Disabilities Civil Rights Act (PWDCRA),1 the Civil Rights Act (CRA),2 and the
1
MCL 37.1101 et seq.
2
MCL 37.2101 et seq.
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federal Fair Housing Act.3 Soon thereafter, Leaphart moved for summary disposition pursuant to
MCR 2.116(C)(9). He asserted that he was entitled to judgment because he provided information
that he was disabled as part of the application process and Fever acted callously toward him,
while H&H had failed to present a valid defense. H&H filed a motion for summary disposition
pursuant to MCR 2.116(C)(8), asserting that the evidence did not support Leaphart’s claim
because he failed to complete the application process and because a background check revealed
that he had an extensive criminal history, making him an unsuitable tenant.
The trial court denied Leaphart’s motion and granted H&H’s motion, first stating:
There was no reference in anything she . . . said that had to do with a
violation of the Elliott-Larsen Civil Rights Act. There was nothing that had to do
with the Persons with Disabilities Act. She didn’t say: I’m not going to rent you
an apartment because you are schizophrenic or you have a schizoid affect[ive]
disorder, nothing to that effect.
She asked why do you want to move here? . . . [S]he was a colorful
person, a person who used colorful language. She cursed quite a bit during
conversation with you. And I don’t know if that’s her usual style or not but she
may have been an unpleasant person but she said nothing that would indicate that
she was discriminating against you under state or federal law.
Leaphart responded that because the applicable statutes prohibited a real estate owner from
engaging in certain conduct “or otherwise deny or make real property unavailable to a person,”4
and H&H had denied him an apartment, H&H was liable. The trial court disagreed, stating:
Then if I were to accept that interpretation there would be no reason on
which or for which an owner of property could deny renting property to an
applicant. And in this instance you weren’t even an applicant in the sense that you
didn’t complete the application process. Not having completed the application
process, not having any language used during the course of the conversation that
would indicate that you were a member of a protected class and she was
discriminating against you, and having an extensive criminal record all provide a
basis for H & H Management to deny you an apartment.
II. Standard Of Review And Legal Standard
We review a trial court’s decision on a dispositive motion de novo on appeal.5 The trial
court properly considered H&H’s motion as if it arose under MCR 2.116(C)(10), not subrule
3
42 USC 3613.
4
MCL 37.1502(1)(e); MCL 37.2502(1)(e).
5
See Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
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(C)(8).6 “A motion for summary disposition under MCR 2.116(C)(10) . . . tests the factual
support of a claim . . . .”7 MCR 2.116(G)(5) requires the reviewing court to consider “affidavits,
together with the pleadings, depositions, admissions, and documentary evidence then filed in the
action or submitted by the parties . . . .” The court reviews this documentary evidence in the
“‘light most favorable to the nonmoving party.’”8 However,
an adverse party may not rest upon the mere allegations or denials of his or her
pleading, but must, by affidavits or as otherwise provided in this rule, set forth
specific facts showing that there is a genuine issue for trial. If the adverse party
does not so respond, judgment, if appropriate, shall be entered against him or
her.[9]
In other words, summary disposition is appropriate “‘if the affidavits or other documentary
evidence show that there is no genuine issue in respect to any material fact,[10] and the moving
party is entitled to judgment as a matter of law.’”11
III. The Trial Court’s Ruling
Technically, Leapheart has failed to present for our review the issue that has any potential
to lead to reversal: whether the trial court erred in granting H&H’s motion for summary
disposition. Instead, he has phrased a somewhat rambling question concerning the applicable
standard of review that does not match his substantive, though short, argument that the trial court
failed to rule on his statutory claims. We respond to his challenge only because he has proceeded
without the benefit of counsel.12
The trial court did rule on Leapheart’s claims. The trial court reasoned, and we agree,
that Fever’s comments, though offensive, did not indicate that Leapheart was being denied an
opportunity to rent an apartment because of his disability. Rather, Fever’s comments were
6
MCR 2.116(C)(8) focuses exclusively on the pleadings, while H&H’s argument implicated the
evidence on the record, which is properly considered under MCR 2.116(C)(10). See MCR
2.116(G)(5).
7
Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999).
8
See id., quoting Quinto v Cross & Peters Co, 451 Mich 358, 362-363; 547 NW2d 314 (1996).
9
MCR 2.116(G)(4).
10
See Richardson v Michigan Humane Society, 221 Mich App 526, 527-528; 561 NW2d 873
(1997) (plaintiff must show genuine issue of material fact regarding each element of prima facie
case to survive a motion for summary disposition under MCR 2.116[C][10]).
11
Smith, supra at 454-455, quoting Quinto, supra.
12
See Paschke v Retool Industries (On Rehearing), 198 Mich App 702, 705; 499 NW2d 453
(1993), rev’d on other grounds 445 Mich 502 (1994) (“The court is obligated only to review
issues that are properly raised and preserved; the court is empowered, however, to go beyond the
issues raised and address any issue that, in the court's opinion, justice requires be considered and
resolved.”).
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directed at his relationship with his aunt. When Fever asked Leapheart why he needed a
housekeeper, Fever did not question his response. She accepted that Leapheart needed a
housekeeper to help with cooking and to help him manage what he called his “episodes.”
Though using this colorful language, Fever merely expressed disbelief that Leapheart’s aunt was
really his housekeeper. This is not the sort of conduct that the CRA, PWDCRA, and Fair
Housing Act address. Thus, according to the evidence on the record, H&H management through
Fever did not discriminate and therefore violate Leapheart’s rights. Summary disposition was
appropriate.
Affirmed.
/s/ William C. Whitbeck
/s/ Janet T. Neff
/s/ Joel P. Hoekstra
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