Nabkey v. Kent Community Action Program, Inc

99 Mich. App. 480 (1980) 298 N.W.2d 11

NABKEY
v.
KENT COMMUNITY ACTION PROGRAM, INC.

Docket No. 48169.

Michigan Court of Appeals.

Decided July 31, 1980.

Before: R.B. BURNS, P.J., and MacKENZIE and J.T. KALLMAN,^[*] JJ.

PER CURIAM.

In this action, plaintiff, L. Lea Nabkey, alleged that defendant, Kent Community Action Program, had refused her written request to review certain of its files in violation of the Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq. Plaintiff sought an order enjoining defendant from withholding this information and an award of punitive damages, costs, and attorney fees.

Upon the filing of this action, defendant advised plaintiff by letter that she could review the documents which she had previously requested. Plaintiff acknowledged receipt of this letter in her answer to defendant's interrogatories. Defendant then moved for summary judgment on the ground that plaintiff had access to the requested records and that the court, therefore, need not issue any disclosure order. The court granted defendant's oral motion on the basis that the records are available to plaintiff and that the offer to make the records available is all that is required under the Freedom of Information Act. The court stated that the disclosure offer by defendant was to be a continuing offer and plaintiff was awarded $50 in addition to her out-of-pocket costs which she had expended in bringing this in propria persona action. Plaintiff appeals.

On appeal, plaintiff contends that the trial court committed error in denying plaintiff a fair trial, a fair and impartial jury, and punitive damages. Plaintiff complains that: "The trial was strangely handled and was treated more as a Motion than a trial. Defendant's witnesses were not present and plaintiff-appellant was denied her right to testify." Plaintiff also argues that because she performed for herself the services which an attorney would have performed on her behalf, the trial court erred by not awarding her attorney fees.

Much of plaintiff's difficulty with this action appears to be the result of plaintiff's pursuing this action unaided by counsel. The normal motion procedures which occurred seemed "strange" to plaintiff and "puzzled and perplexed" her. In that respect, this Court cannot remedy the "wrongs" plaintiff alleges transpired. However, we believe that three issues merit discussion.

The first issue we consider is the trial court's granting of summary judgment pursuant to GCR 1963, 117.2(3) when the moving party failed to file supporting affidavits. This Court has adopted a "per se" rule that a party moving for summary judgment pursuant to GCR 1963, 117.2(3) must file supporting affidavits, and failure to do so will result in reversal regardless of whether the motion is supported by other proof in the record. Based on this "per se" rule the trial court erred in granting defendant's motion for summary judgment.

The second issue we consider is the trial court's denial of attorney fees. Under § 10(4) of the act, MCL 15.240(4); MSA 4.1801(10)(4), plaintiff, as a prevailing plaintiff, was entitled to an award of "reasonable attorneys' fees, costs, and disbursements". Though the trial court erroneously viewed this award as a matter of discretion, the court nonetheless made a proper award to plaintiff of costs and $50 for disbursements. Since plaintiff was not represented by an attorney, no award of attorney fees was possible, and the trial court did not err in denying such fees.

The third issue which we consider involves plaintiff's request for an award of punitive damages. Subsection 10(5) of the act, MCL 15.240(5); MSA 4.1801(10)(5), mandates an award of punitive damages in the amount of $500 to a prevailing plaintiff where the trial court determines that the defendant's refusal or delay in disclosing the requested information constitutes an arbitrary and capricious violation of the act.

The trial court in the present action never addressed the question of whether defendant "arbitrarily and capriciously" delayed in complying with plaintiff's request. We, therefore, remand the action for a determination on this issue.

Reversed in part, affirmed in part, and remanded for further consideration in accordance with this opinion.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.