Stephen Emsley v. Lyon Charter Township Board of Trustees

STATE OF MICHIGAN
COURT OF APPEALS
STEPHEN EMSLEY and ANN MARIE UNPUBLISHED
EMSLEY, March 27, 2018
Plaintiff-Appellant,
v No. 337123
Oakland Circuit Court
LYON CHARTER TOWNSHIP BOARD OF LC No. 2016-153657-CZ
TRUSTEES and CERTAIN UNKNOWN PUBLIC
OFFICIALS,
Defendants-Appellees.
Before: K. F. KELLY, P.J., and MURPHY and RIORDAN, JJ.
PER CURIAM.
Plaintiffs Stephen and Ann Marie Emsley appeal as of right the trial court’s order
granting summary disposition in favor of defendants Lyon Charter Township Board of Trustees
(the board) and Certain Unknown Public Officials (unknown officials) in this action brought
under the Open Meetings Act (OMA), MCL 15.261 et seq. We reverse and remand for further
proceedings regarding injunctive relief, but affirm the summary dismissal of the claims for
declaratory relief and money damages.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 21, 2016, the board held a “special meeting” regarding township road projects,
which meeting included the board going into a “closed session” on a matter encompassing
attorney-client privileged communications. Public notice of the special meeting was provided by
the board. An agenda concerning the special meeting was prepared, and the agenda indicated,
under item 7, that there would be a closed-session portion covering attorney-client privileged
communications. Three members of the public attended the special meeting (not plaintiffs).
After item 6 on the agenda was concluded, the board, on a motion by a unanimous voice vote,
moved into closed session on item 7.
At a regularly scheduled board meeting held on May 2, 2016, draft minutes of the special
meeting were presented to and approved by the board; however, the minutes did not include any
reference to the closed session that took place at the special meeting. As reflected in affidavits
by the township clerk and the board’s recording secretary, the township clerk was at the special
meeting but the recording secretary was not present, the township clerk took the recording of the
special meeting and gave it to the recording secretary, the recording secretary prepared the
-1-
minutes of the special meeting based on the recording, and the recording secretary inadvertently
and unintentionally did not refer to the closed session in the draft minutes. Later, the township
clerk prepared the final minutes of the special meeting for purposes of public posting, discovered
the omission regarding the closed session at the special meeting, and corrected the oversight by
noting in the minutes that a closed session occurred during the special meeting. These minutes
indicated that the closed session was called by a voice vote of the board, and the minutes did not
provide any details regarding why the board went into closed session.1 On May 13, 2016,
plaintiff Stephen Emsley, who had learned from another person that the closed session took place
at the special meeting, sent the township a request for the minutes of the special meeting, and the
township clerk provided him with the final minutes that showed the closed session.
On June 24, 2016, plaintiffs filed suit against the board and unknown officials. The
complaint alleged that the board went into closed session at the special meeting, that there was
no motion indicating the purpose of the closed session, that no roll call vote was taken, as
opposed to the voice vote that did take place, that no minutes revealed “the purpose of the closed
session” or that a roll call vote was taken, that the public was asked to leave for the closed
session, and that the minutes approved on May 2, 2016, did not state that a closed session
occurred or that a vote was taken to go into closed session. Plaintiffs further alleged that new
minutes were later prepared by an unknown official, 2 that the new minutes referred to an
adjournment at the special meeting in order to move into closed session, that the new minutes did
not indicate that this was a correction of the approved minutes, that the board never approved or
passed the new altered minutes, and that the OMA required a roll call vote on any closed session,
a disclosure of the purpose of the closed session, and inclusion of the closed session’s occurrence
in the minutes. In the prayer for relief, plaintiffs sought: injunctive relief, compelling
compliance with the OMA and enjoining any further noncompliance; declaratory relief, asking
the court to find that the OMA was violated; money damages for any intentional violation of the
OMA; invalidation of any decisions made in violation of the OMA; and compulsion of the
preparation of minutes that comply with the OMA.
In the face of plaintiffs’ complaint, the board conducted a reenactment of the special
meeting, attempting to correct any OMA procedural errors made at the original special meeting
and followed by the preparation of minutes for the reenactment meeting. 3 Plaintiffs then filed a
1
As later revealed in discovery, the closed session was to discuss an attorney-client written legal
opinion containing advice regarding township fire department matters.
2
As indicated above, it was done by the township clerk, but plaintiffs did not know that at the
time.
3
The board did the reenactment in an effort to comply with MCL 15.270(5), which provides as
follows:
In any case where an action has been initiated to invalidate a decision of a
public body on the ground that it was not taken in conformity with the
requirements of this act, the public body may, without being deemed to make any
admission contrary to its interest, reenact the disputed decision in conformity with
this act. A decision reenacted in this manner shall be effective from the date of
-2-
first amended complaint, deleting their prior request to invalidate any board decision made in
violation of the OMA. Next, defendants filed a motion for summary disposition, and plaintiffs
filed a motion for leave to file a second amended complaint, asking to add the township clerk as
a defendant, as plaintiffs had now learned of her role in altering the minutes for the special
meeting. Plaintiffs also wished to add allegations that there was a pattern of ongoing OMA
violations by the board dating back to 2008; no such allegations were included in the first two
complaints.
In the motion for summary disposition, defendants argued that the service of process on
unknown officials was insufficient, so “they” should be dismissed. Defendants further
contended that, for purposes of the OMA, plaintiffs failed as a matter of law to show an
intentional violation of the OMA, to set forth a viable claim for injunctive relief, and to establish
entitlement to declaratory relief. In response, plaintiffs argued that they were no longer seeking
declaratory relief or to invalidate any decision by the board, that the reenactment did not validate
a decision, as there was no decision made at the special meeting, that the reenactment could not
undo all of the OMA procedural violations, that injunctive relief was appropriate because there
had been a history of ongoing OMA violations relative to closed sessions since 2008,4 that the
board and township clerk had engaged in intentional violations of the OMA in regard to minutes
for closed sessions, and that plaintiffs were seeking to remove unknown officials from the
complaint and add the township clerk.
The trial court granted summary disposition in favor of defendants, issuing a written
opinion and order.5 The court ruled that declaratory relief was not an available remedy under the
OMA, that plaintiffs were not entitled to injunctive relief, given that they failed to show
“ongoing” violations of the OMA that would continue in the future, and that there was no
evidence of an intentional OMA violation, so money damages could not be recovered. The trial
court rejected the claim for declaratory relief under MCR 2.116(C)(8), and the rest of the claims
were summarily dismissed under MCR 2.116(C)(10). The trial court also denied plaintiffs’
reenactment and shall not be declared invalid by reason of a deficiency in the
procedure used for its initial enactment.
4
Plaintiffs asserted that the OMA violations included: the board failed to take roll call votes, as
opposed to voice votes, when going into closed sessions; the board failed to indicate the purpose
for going into closed sessions; the board and clerk failed to enter into the minutes the purpose for
going into closed sessions and to show roll call votes; the board and the clerk failed to take
separate minutes for closed sessions; and to the extent that closed sessions concerned attorney-
client matters, no specific litigation was identified. Plaintiffs attached numerous meeting
minutes from over the years, which showed the board going into executive or closed sessions on
voice votes and absent mention of the purpose of such sessions.
5
We do note that the trial court rejected the argument concerning unknown officials, concluding
that the defense of insufficient service of process was waived, where it was not raised in a first
responsive pleading. However, the trial court’s determination that relief was not available to
plaintiffs under the OMA, infra, ostensibly encompassed the unknown officials, as well as the
board.
-3-
request to file a second amended complaint, ruling that any action against the township clerk was
time-barred, thereby making amendment futile. Plaintiffs appeal as of right.
II. ANALYSIS
A. STANDARDS OF REVIEW AND SUMMARY DISPOSITION TESTS
We review de novo a trial court’s ruling on a motion for summary disposition. Citizens
for a Better Algonac Community Schs v Algonac Community Schs, 317 Mich. App. 171, 176; 894
NW2d 645 (2016). This Court reviews for an abuse of discretion a trial court's decisions
regarding whether to grant or deny injunctive relief under the OMA and whether to invalidate a
decision made in violation of the OMA. Id. at 177.
With respect to MCR 2.116(C)(8), which provides for summary disposition when a
“party has failed to state a claim on which relief can be granted,” it tests the legal sufficiency of a
complaint. Beaudrie v Henderson, 465 Mich. 124, 129; 631 NW2d 308 (2001). The trial court
may only consider the pleadings in rendering its decision. Id. All factual allegations in the
complaint are accepted as true. Dolan v Continental Airlines/Continental Express, 454 Mich.
373, 380-381; 563 NW2d 23 (1997). “The motion should be granted if no factual development
could possibly justify recovery.” Beaudrie, 465 Mich. at 130.
In regard to MCR 2.116(C)(10), this Court in Pioneer State Mut Ins Co v Dells, 301 Mich
App 368, 377; 836 NW2d 257 (2013), explained:
In general, MCR 2.116(C)(10) provides for summary disposition when
there is no genuine issue regarding any material fact and the moving party is
entitled to judgment or partial judgment as a matter of law. A motion brought
under MCR 2.116(C)(10) tests the factual support for a party's claim. A trial court
may grant a motion for summary disposition under MCR 2.116(C)(10) if the
pleadings, affidavits, and other documentary evidence, when viewed in a light
most favorable to the nonmovant, show that there is no genuine issue with respect
to any material fact. A genuine issue of material fact exists when the record,
giving the benefit of reasonable doubt to the opposing party, leaves open an issue
upon which reasonable minds might differ. The trial court is not permitted to
assess credibility, weigh the evidence, or resolve factual disputes, and if material
evidence conflicts, it is not appropriate to grant a motion for summary disposition
under MCR 2.116(C)(10). A court may only consider substantively admissible
evidence actually proffered relative to a motion for summary disposition under
MCR 2.116(C)(10). [Citations and quotation marks omitted.]
B. GENERAL OMA PRINCIPLES
The panel in Algonac Community, 317 Mich. App. at 177-179, relying in part on our
Supreme Court’s decision in Speicher v Columbia Twp Bd of Trustees, 497 Mich. 125; 860
NW2d 51 (2014), set forth some basic principles governing the OMA:
The OMA generally provides that “[a]ll meetings of a public body shall be
open to the public and shall be held in a place available to the general public,”
that “[a]ll decisions of a public body shall be made at a meeting open to the
-4-
public,” and that, except as otherwise provided, “[a]ll deliberations of a public
body constituting a quorum of its members shall take place at a meeting open to
the public . . . .” MCL 15.263(1) through (3), respectively.
With respect to causes of action available under the OMA, MCL
15.270(1) provides that a person may file “a civil action in the circuit court to
challenge the validity of a decision of a public body made in violation of th[e]
act.” And MCL 15.270(2) empowers a court to invalidate a public body’s decision
on the basis of OMA violations. The Speicher Court noted that MCL 15.270
“does not provide for an award of attorney fees or costs.” Id. Next, MCL
15.271(1) states that a person may file “a civil action to compel compliance or to
enjoin further noncompliance with” the OMA “[i]f a public body is not complying
with th[e] act.” (Emphasis added.) According to our Supreme Court, MCL
15.271(1) “contemplates an ongoing violation, precisely the circumstances in
which injunctive relief is appropriate.” Speicher, 497 Mich. at 138 (emphasis
added). As construed by the Speicher Court, MCL 15.271(4) allows for an award
of court costs and actual attorney fees, but only if a party succeeds in obtaining
the injunctive relief described in the statute. Id. In holding that a party must be
successful in obtaining injunctive relief before being entitled to court costs and
attorney fees under MCL 15.271(4), the Court in Speicher overruled Ridenour v
Dearborn Bd of Ed, 111 Mich. App. 798; 314 NW2d 760 (1981), “and its progeny
to the extent that those cases allow for the recovery of attorney fees and costs
under MCL 15.271(4) when injunctive relief was not obtained, equivalent or
otherwise.” Speicher, 497 Mich. at 143. Finally, MCL 15.273(1) provides that
“[a] public official who intentionally violates this act shall be personally liable in
a civil action for actual and exemplary damages of not more than $500.00 total,
plus court costs and actual attorney fees . . . .” See Speicher, 497 Mich. at 136.
In sum, MCL 15.270 (action to invalidate decision made in violation of
the OMA), MCL 15.271 (action for injunctive relief to enjoin ongoing OMA
violation and to compel compliance), and MCL 15.273 (action for damages for
intentional OMA violation) “create[] a three-tiered enforcement scheme for
private litigants[.]” Speicher, 497 Mich. at 135.
There is no cause of action for declaratory relief available under the OMA. Algonac Community,
317 Mich. App. at 180-181.
C. OMA – CLOSED SESSIONS AND MEETING MINUTES
There are two statutes in the OMA that directly address closed sessions, MCL 15.267 and
MCL 15.268. And MCL 15.267 provides:
(1) A 2/3 roll call vote of members elected or appointed and serving is
required to call a closed session, except for the closed sessions permitted under
section 8(a), (b), (c), (g), (i), and (j). The roll call vote and the purpose or
purposes for calling the closed session shall be entered into the minutes of the
meeting at which the vote is taken.
-5-
(2) A separate set of minutes shall be taken by the clerk or the designated
secretary of the public body at the closed session. These minutes shall be retained
by the clerk of the public body, are not available to the public, and shall only be
disclosed if required by a civil action filed under section 10, 11, or 13.
MCL 15.268(e) allows a public body to meet in a closed session to “consult with its attorney
regarding trial or settlement strategy in connection with specific pending litigation, but only if an
open meeting would have a detrimental financial effect on the litigating or settlement position of
the public body.” And MCL 15.268(h) allows a public body to meet in a closed session to
“consider material exempt from discussion or disclosure by state or federal statute.” This
provision – MCL 15.268(h) – has been construed to encompass an attorney-client exemption
under the OMA, allowing discussion of a written legal opinion in a closed session limited to the
meaning of any strictly legal advice presented in the written opinion. People v Whitney, 228
Mich. App. 230, 246-247; 578 NW2d 329 (1998); Booth Newspapers, Inc v Regents of the Univ of
Mich, 93 Mich. App. 100, 107; 286 NW2d 55 (1979). MCL 15.268(e) and (h) are not referenced
in MCL 15.267(1); therefore, closed sessions called pursuant to MCL 15.268(e) and (h) must be
by “[a] 2/3 roll call vote of members elected or appointed and serving . . . and . . . [t]he roll call
vote and the purpose or purposes for calling the closed session shall be entered into the minutes .
. . .” MCL 15.267(1) (emphasis added).
In regard to meeting minutes, MCL 15.269 provides, in pertinent part:
(1) Each public body shall keep minutes of each meeting showing the
date, time, place, members present, members absent, any decisions made at a
meeting open to the public, and the purpose or purposes for which a closed
session is held. The minutes shall include all roll call votes taken at the meeting.
The public body shall make any corrections in the minutes at the next meeting
after the meeting to which the minutes refer. The public body shall make
corrected minutes available at or before the next subsequent meeting after
correction. The corrected minutes shall show both the original entry and the
correction.
D. DISCUSSION OF OMA ISSUES
The two forms of relief at issue here are injunctive relief and money damages for an
intentional violation of the OMA.
1. INJUNCTIVE RELIEF
With respect to injunctive relief, which, as indicated above requires an ongoing OMA
violation, the Court in Algonac Community, 317 Mich. App. at 182-183, stated:
To be clear, we do not find that the “ongoing” requirement of MCL
15.271(1) (“[i]f a public body is not complying with th[e] act”) mandates a
showing that a public body, at the time an OMA suit is filed, is in the midst of
deliberating a particular matter in violation of the OMA. Rather, if there has been
a pattern, within a relevant timeframe, reflecting that a public body has been
regularly engaging in activity that violates the OMA, an action for injunctive
relief under MCL 15.271 would be proper even if deliberations were not being
-6-
conducted at the precise point in time when an OMA action was filed; the pattern
itself could establish “ongoing” violations.[6]
With respect to injunctive relief, the trial court found that, even when viewing the
evidence in a light most favorable to plaintiffs, there was no ongoing OMA violation or pattern
of violating the OMA that justified relief. The court observed that defendants reenacted the
special meeting and closed session to cure any OMA violations or deficiencies. The trial court
acknowledged that the proposed second amended complaint referred to a pattern of OMA
violations going back to 2008. However, the court agreed with defendants “that injunctive relief
is unwarranted because there is no reason to believe [d]efendants will continue to violate the
OMA.”
We cannot agree with the trial court’s analysis and ruling, as it is completely inconsistent
with Algonac Community. Apparently, the trial court believed that the reenactment reflected that
defendants realized their past procedural mistakes concerning closed sessions and would no
longer engage in conduct contrary to the OMA. The record contains evidence that for eight
years defendants conducted closed sessions in violation of the OMA, with meeting minutes
showing that the board almost always employed voice votes instead of roll call votes and almost
never declared the purpose or purposes for which closed sessions occurred.7 This evidence
established “a pattern, within a relevant timeframe, reflecting that a public body has been
regularly engaging in activity that violates the OMA,” i.e., ongoing violations. Algonac
Community, 317 Mich. App. at 182-183.8 The fact that the township clerk indicated that she will
6
By way of example, the Algonac Community panel explained:
For example, if a public body deliberated on 10 separate matters over a
one-month period, all in violation of the OMA, the filing of an action for
injunctive relief under MCL 15.271 would be appropriate before an eleventh
matter was entertained the following month even if the tenth matter had been
concluded. . . . The same conclusion would likely not be reached if the 10 OMA
violations had occurred five years before an OMA injunctive suit was filed, with
no current or active violations taking place, nor any violation having transpired
during the five-year interim. [Algonac Community, 317 Mich. App. at 183 n 1.]
7
We do note that roll call votes are not necessary for going into closed session in every instance,
MCL 15.267(1); however, the few times a purpose is referred to in the minutes over the years,
the purpose is in reference to litigation or attorney-client matters, both of which require a roll call
vote as discussed above.
8
Plaintiffs, citing MCL 15.268(e), spend considerable time arguing that defendants also violated
the OMA by failing to indicate by name the specific litigation covered by the attorney-client
exception referenced in the few minutes that actually included a mention of why a session was
closed. As indicated earlier, MCL 15.268(e) does provide that a closed session is allowed in
order for a public body to consult with its counsel “in connection with specific pending
litigation.” (Emphasis added.) However, plaintiffs appear to be making this argument relative to
attorney-client communications regarding legal opinions and advice, which, as noted above, is
covered by MCL 15.268(h), and which need not even concern litigation.
-7-
in the future perform her role in compliance with the OMA and that she will support and
encourage all township officials to also do so cannot wash away eight years of violations; it was
plaintiffs’ lawsuit that essentially forced defendants’ hand in halting ongoing OMA violations
relative to closed sessions. If we were to accept defendants’ logic, public bodies could easily
escape OMA lawsuits by simply making promises of future compliance. We must examine
patterns of past conduct, not reassurances of compliant conduct in meetings down the road.
We appreciate that plaintiffs’ first two complaints did not mention past OMA violations
dating back to 2008, focusing instead on the special meeting conducted on April 21, 2016.
However, plaintiffs did request injunctive relief, which required a showing of an ongoing
violation, and in response to defendants’ motion for summary disposition, wherein defendants
asserted that there was no such showing, plaintiffs submitted the evidence of eight years of OMA
violations. The evidence was properly before the court in the context of summary disposition,
MCR 2.116(G)(4). Additionally, as will be discussed below, the trial court should have
permitted plaintiffs to file a second amended complaint so as to at least add the allegations of
eight years of OMA violations, but excluding the addition of the township clerk as a party.
Moreover, in regard to the reenactment conducted under MCL 15.270(5), the statutory
provision pertains to cases “where an action has been initiated to invalidate a decision of a public
body,” with the result being that the reenacted decision is deemed effective from the date of the
reenactment. Here, there was no “decision” tied to the special meeting, and plaintiffs dropped
their claim to invalidate any decision, recognizing that there was no decision to invalidate.
Defendants’ reenactment could not undo the eight years of OMA violations for purposes of
injunctive relief.
In sum, we agree with plaintiffs’ argument that they were entitled to summary disposition
under MCR 2.116(I)(2)9 with respect to the claim for injunctive relief predicated on ongoing
OMA violations in connection with procedural failures regarding closed sessions, MCL 15.267
and MCL 15.268.
We must also touch on the taking of minutes for closed sessions. In her deposition, the
township clerk testified that she did not take minutes of closed sessions because counsel told her
it was not necessary. In response to requests for admissions regarding minutes covering closed
sessions, defendants stated “that a set of minutes are taken for all closed sessions which contain
the date, time, place, members present and absent and purpose of the closed session . . .[,] [but]
[t]he clerk does not summarize matters discussed in a closed session meeting, nor is she required
to do so by law.” In a slew of meeting minutes supplied to plaintiffs through discovery, one
concerned a closed session held on April 5, 2010, which provided details on pending litigation
and attorney-client privileged correspondence, and which referenced an annexation matter and
the operation of a business out of a person’s home.10 These minutes appear to conflict with
9
MCR 2.116(I)(2) provides that “[i]f it appears to the court that the opposing party, rather than
the moving party, is entitled to judgment, the court may render judgment in favor of the opposing
party.”
10
We cannot ascertain based on the minutes whether these two matters were connected to
pending litigation or attorney-client privileged correspondence.
-8-
defendants’ response to the requests for admissions and the testimony of the township clerk. As
cited above, MCL 15.267(2) provides:
A separate set of minutes shall be taken by the clerk or the designated
secretary of the public body at the closed session. These minutes shall be retained
by the clerk of the public body, are not available to the public, and shall only be
disclosed if required by a civil action . . . .
And MCL 15.269(1) provides that “[e]ach public body shall keep minutes of each meeting
showing the date, time, place, members present, members absent, any decisions made at a
meeting open to the public, and the purpose or purposes for which a closed session is held.”
(Emphasis added.) Accordingly, defendants’ answer to the requests for admissions was accurate
regarding the necessary contents of minutes for a closed session. However, given the
inconsistency between the testimony of the township clerk and the response to the requests for
admissions, it is unclear whether minutes were actually prepared for all closed sessions. It is
unnecessary to resolve the conflict, considering that we have already concluded that plaintiffs
were entitled to injunctive relief for other OMA violations. To the extent that minutes were not
prepared for closed sessions in compliance with the OMA, defendants shall do so in the future.
2. MONEY DAMAGES – INTENTIONAL VIOLATION
MCL 15.273(1) provides that “[a] public official who intentionally violates this act shall
be personally liable in a civil action for actual and exemplary damages of not more than $500.00
total, plus court costs and actual attorney fees to a person or group of persons bringing the
action.” Plaintiffs’ only appellate argument concerning an intentional violation of the OMA
relates to the township clerk, and for the reasons stated below, plaintiffs failed to show that the
trial court erred in denying plaintiffs’ effort to file a second amended complaint as to adding the
township clerk as a party. Therefore, it is unnecessary to determine whether there exists an issue
of fact concerning whether the township clerk intentionally violated the OMA. We do note that
there was no evidence that any other particular “public official” intentionally violated the OMA.
E. MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
We review for an abuse of discretion a trial court's ruling on a motion to amend
pleadings. Ormsby v Capital Welding, Inc, 471 Mich. 45, 53; 684 NW2d 320 (2004). An abuse
of discretion occurs when a trial court's decision results in an outcome falling outside a
principled range of outcomes. Woods v SLB Prop Mgt, LLC, 277 Mich. App. 622, 625; 750
NW2d 228 (2008). “If the grounds asserted [in support of summary disposition] are based on
subrule (C)(8), (9), or (10), the court shall give the parties an opportunity to amend their
pleadings as provided by MCR 2.118, unless the evidence then before the court shows that
amendment would not be justified.” MCR 2.116(I)(5). “Leave shall be freely given when
justice so requires.” MCR 2.118(A)(2). A motion to amend a complaint should ordinarily be
granted unless there exists undue delay, bad faith or a dilatory motive, repeated failures to cure
deficiencies with prior amendments, futility, or undue and actual prejudice. Weymers v Khera,
454 Mich. 639, 658-659; 563 NW2d 647 (1997).
The trial court’s sole ruling on this issue was that a suit against the township clerk was
time-barred because a claim for damages must be brought within 180 days of a violation under
-9-
MCL 15.273(2).11 And plaintiffs, in their appellate brief, simply state that the motion to amend
was filed within 180 days after they learned through discovery of the township clerk’s true role
in OMA violations. Plaintiffs do not present any supporting authorities or analysis; there is
nothing of any relevancy beyond that one statement, which itself is woefully inadequate to
undermine the court’s ruling. In Mudge v Macomb Co, 458 Mich. 87, 105; 580 NW2d 845
(1998), our Supreme Court stated:
“It is not enough for an appellant in his brief simply to announce a
position or assert an error and then leave it up to this Court to discover
and rationalize the basis for his claims, or unravel and elaborate for him his
arguments, and then search for authority either to sustain or reject his position.
The appellant himself must first adequately prime the pump; only then does the
appellate well begin to flow.” [Citation omitted.]12
Accordingly, we affirm the trial court’s decision to not allow plaintiffs to add the township clerk
to the action.
The trial court simply did not address the changes or additions in the proposed second
amended complaint unassociated directly with the township clerk, which essentially covered
plaintiffs’ reference to ongoing OMA violations dating back to 2008 in relationship to closed
sessions. Considering that the trial court granted summary disposition in favor of defendants
under MCR 2.116(C)(8) and (10) and that leave should be freely given, the court should have
allowed the filing of the second amended complaint to the extent that it alleged ongoing OMA
violations since 2008. Regardless, as held earlier, evidence of those violations was properly
introduced by plaintiffs in response to defendants’ motion for summary disposition, so the
proposed second amended complaint is essentially rendered moot on the matter.
11
MCL 15.273(2) does provide that “[a]n action under this section shall be commenced within
180 days after the date of the violation which gives rise to the cause of action.”
12
In their reply brief, plaintiffs extend their argument, maintaining that the limitations period
was tolled because the township clerk engaged in deliberate concealment of information that
made it impossible for plaintiffs to timely discover her role in the OMA violations. However,
reply briefs are limited to rebuttal and raising an issue for the first time in a reply brief does not
suffice to present the matter for appeal. Bronson Methodist Hosp v Mich Assigned Claims
Facility, 298 Mich. App. 192, 199; 826 NW2d 197 (2012). Moreover, plaintiffs’ lawsuit
concerned improper meeting minutes and the township clerk was involved in preparation of
meeting minutes, so we find no merit in plaintiffs’ excuses for not naming her as a party from the
beginning. Also, we cannot conclude that the township clerk participated in any fraudulent
concealment. And although we do not resolve the issue, we question whether the record
supports plaintiffs’ assertion that the township clerk intentionally violated the OMA, as opposed
to doing so inadvertently, negligently, or recklessly.
-10-
III. CONCLUSION
The trial court erred in granting summary disposition in favor of defendants on plaintiffs’
claim for injunctive relief. Instead, plaintiffs are entitled to summary disposition relative to their
claim for injunctive relief, and we remand the case for entry of judgment in favor of plaintiffs on
that claim and for an award of court costs and actual attorney fees in accordance with MCL
15.271(4). We affirm the trial court’s rulings rejecting plaintiffs’ claims seeking declaratory
relief and money damages for an intentional OMA violation. We also affirm the trial court’s
decision not to allow plaintiffs to add the township clerk as a party.
Affirmed in part and reversed and remanded in part for proceedings consistent with this
opinion. We do not retain jurisdiction. We decline to award taxable costs under MCR 7.219.
/s/ Kirsten Frank Kelly
/s/ William B. Murphy
/s/ Michael J. Riordan
-11-