Cape v. Howell Bd. of Educ.

• Decision Date: 26 December 1985
• Docket Number: Docket No. 75136
• Citation: 378 N.W.2d 506,29 Ed. Law Rep. 379,145 Mich.App. 459
• Parties: Thomas H. CAPE, Plaintiff-Appellant, v. HOWELL BOARD OF EDUCATION and City of Howell, a Michigan municipal corporation, Defendants-Appellees. 145 Mich.App. 459, 378 N.W.2d 506, 29 Ed. Law Rep. 379
• Court: Court of Appeal of Michigan — District of US

Page 506

378 N.W.2d 506

Thomas H. CAPE, Plaintiff-Appellant, v. HOWELL BOARD OF EDUCATION and City of Howell, a Michigan municipal corporation, Defendants-Appellees.

Docket No. 75136.

145 Mich.App. 459, 378 N.W.2d 506, 29 Ed. Law Rep. 379

Court of Appeals of Michigan.

Submitted Aug. 16, 1984.

Decided Sept. 4, 1985.

Released for Publication Dec. 26, 1985.

[145 MICHAPP 460] Lord & Lassen, P.C. by Gregory F. Lord, Southfield, for plaintiff-appellant.

Wilfred H. Erwin, Howell, for the Howell Bd. of Educ.

Reck, Reck & Ashley, P.C. by J. David Reck, Howell, for the City of Howell.

Before CYNAR, P.J., and WAHLS and FINCH ^*, JJ.

PER CURIAM.

On July 22, 1983, plaintiff commenced[145 MICHAPP 461] an action for violation of the Open Meetings Act, M.C.L. Sec. 15.261 et seq.; MSA 4.1800(11) et seq.; and particularly Sec. 8 thereof. ¹ Plaintiff alleged that, at a regular meeting of the Howell Board of Education on February 14, 1983, the board conducted a closed executive session for the stated purpose of discussing real estate and that, in the closed session, the board discussed accepting an option to purchase certain school property by the City of Howell. The approved minutes of the meeting, attached as an appendix to plaintiff's complaint, show that a motion to accept the option carried. Plaintiff alleged that another improper executive session occurred at the June 7, 1983, regular meeting; the minutes indicate that the board again went into executive session to discuss real estate and subsequently voted to authorize an extension of the city's option until August 15, 1983. Plaintiff further alleged that sale of the property was authorized at the June 27, 1983, regular meeting and transfer was made the same day by warranty deed. On information and belief, plaintiff alleged that the city was going to transfer the property to the United States Postal Service. Without specifying which meetings were implicated, plaintiff alleged a failure to give adequate notice to the public of the agenda items and to [145 MICHAPP 462] provide an opportunity to be heard. ² Plaintiff requested that the June 27 transfer of property be invalidated. ³

Service of process was accomplished on September 26, 1983, on both defendants. On October 13, 1983, the city answered the complaint and raised as affirmative defenses that the claim was barred by the statute of limitations and by laches, and that plaintiff failed to state a claim because he did not allege any willful or intentional evasion of the Open Meetings Act by the board. The same day, defendants jointly filed a motion for accelerated and/or summary judgment on the grounds that the period of limitation had run, that no violation of the Open Meetings Act had occurred, and that willful or intentional evasion of the act had not been alleged.

On November 2, 1983, plaintiff brought a motion for leave to amend his complaint "to include allegations that the asserted failure of the Howell Board of Education to comply with the requirements of Michigan's Open Meetings Act was detrimental to and impaired the public interest and, further, that such violations were intentional and [145 MICHAPP 463] designed to preclude public discussion of the decision of that body to sell" certain school property to the city.

Plaintiff's and defendants' motions were heard on November 7, 1983. Counsel agreed that defendants' motion was brought pursuant to GCR 1963, 116.1(5) and 117.2(1). The court then granted accelerated judgment to defendants because the complaint was not filed within either 30 or 60 days of February 14, 1983, which the court viewed as being the date when "the substantive meeting took place". The court also granted summary judgment to defendants, at least in part because plaintiff did not allege "that the public good was impaired or that the school board willfully or intentionally sought to violate the Act". The court denied plaintiff's motion to amend because the school building, which plaintiff apparently wanted to preserve, had been torn down during the period between commencement of the action and service of process on defendants; the court concluded that leave to amend would work injustice. However, the court indicated that it would reconsider the motion to amend if plaintiff alleged facts of "some sort of skullduggery or some sort of misdeed as would be suggested by" Esperance v. Chesterfield Twp., 89 Mich.App. 456, 280 N.W.2d 559 (1979). The court concluded that the conclusory allegations in plaintiff's motion were insufficient. An order dismissing the complaint was entered November 14, 1983, from which plaintiff has appealed as of right.

Plaintiff argues that defendants' motion was defective as a "hybrid" motion and for failure to cite what court rules it was premised on. This Court has repeatedly criticized the use of hybrid motions for accelerated and/or summary judgment. See Ceplin v. Bastian-Blessing Division of Golconda Corp., 90 Mich.App. 527, 530, 282 N.W.2d [145 MICHAPP 464] 380 (1979), Knapp v. Dearborn, 60 Mich.App. 18, 26, 230 N.W.2d 293 (1975). However, those cases dealt with the requests for accelerated and/or summary judgment where there was only a single basis presented for dismissing the complaint and that basis was not clear from the motion.

In the instant case, defendants' request for accelerated and/or summary judgment was proper since defendants presented separate reasons for dismissing the complaint. Specifically, defendants asserted that they were entitled to accelerated judgment because the claim was barred by the statute of limitations and were also entitled to summary judgment because the complaint failed to set forth a claim upon which relief could be granted. Defendants were, therefore, making separate claims and were not combining these requests into a single "hybrid" motion.

Defendants' failure to "identify" the court rules under which they were proceeding did not lead to any confusion which would make the granting of the motions improper. In Partrich v. Muscat, 84 Mich.App. 724, 729, 270 N.W.2d 506 (1978), this Court admonished trial courts and attorneys for the failure to specify the particular subrule of the summary judgment rule under which summary judgment was requested and granted. This Court stated:

"Unless the applicable subrule under which a party is proceeding is identified, the trial court's job of deciding the motion and our review on appeal become much more difficult. * * * Unless attorneys devote more thought and consideration to the basis upon which such motions are brought, the problem is likely to be further compounded with the consolidation of present rules 116 and 117 in the future. * * * At some point, counsel and trial courts may be subjected to a summary remand to clarify the grounds upon which such a judgment is granted."

[145 MICHAPP 465] In the instant case, defendants failed to specify the court rules on which their motion was based. Defendants, however, stated in their motion for accelerated and/or summary judgment that plaintiff's claim was "barred by the applicable limitation period contained within the Open Meetings Act", and that plaintiff had failed to meet the "threshold jurisdictional requirement" since plaintiff did not allege "wilful or intentional evasion of the spirit and intent of the Open Meetings Act". Moreover, the particular court rules were identified at the hearing on November 7, 1983. The parties and trial court agreed that the motion for accelerated judgment was brought under GCR 1963, 116.1(5) and the motion for summary judgment was brought under 117.2(1). Neither attorney expressed any confusion as to which court rules were applicable. Consequently, the court rules under which the motions were granted were adequately indicated in the trial court record and we find ourselves readily able to review the lower court's order on its merits.

Plaintiff argues that accelerated judgment was improper because controlling issues of fact existed. Schipani v. Ford Motor Co., 102 Mich.App. 606, 302 N.W.2d 307 (1981). We disagree, being unable to find any genuine issues of fact relevant to disposition of the issue whether the period of limitation had run. Nevertheless, we vacate the grant of accelerated judgment to defendants because the court below used the incorrect date to start the period running.

Section 10 of the Open Meetings Act, M.C.L. Sec. 15.270(3); M.S.A. Sec. 4.1800(20)(3), provides:

"The circuit court shall not have jurisdiction to invalidate a decision of a public body for a violation of this act unless an action is commenced pursuant to this section within the following specified period of time:

[145 MICHAPP 466] "(a) Within 60 days after the approved minutes are made available to the public by the public body except as otherwise provided in subdivision (b).

"(b) If the decision involves the approval of contracts, the receipt or acceptance of bids, the making of assessments, the procedures pertaining to the issuance of bonds or other evidences of indebtedness, or the submission of a borrowing proposal to the electors, within 30 days...