Emsley v. Charter Twp. of Lyon Bd. of Trs.

• Docket Number: 353097,354162
• Decision Date: 02 December 2021
• Parties: STEPHEN EMSLEY, Plaintiff-Appellant, v. CHARTER TOWNSHIP OF LYON BOARD OF TRUSTEES, Defendant-Appellee. MR. SUNSHINE and STEPHEN EMSLEY, Plaintiffs-Appellants, v. CHARTER TOWNSHIP OF LYON BOARD OF TRUSTEES, LISA BLADES, PATRICIA CARCONE, MICHELE CASH, JOHN DOLAN, SEAN O'NEIL, CAROL ROSATI, KRISTOFER ENLOW, and JOHN HICKS, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

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STEPHEN EMSLEY, Plaintiff-Appellant, v. CHARTER TOWNSHIP OF LYON BOARD OF TRUSTEES, Defendant-Appellee.

MR. SUNSHINE and STEPHEN EMSLEY, Plaintiffs-Appellants, v. CHARTER TOWNSHIP OF LYON BOARD OF TRUSTEES, LISA BLADES, PATRICIA CARCONE, MICHELE CASH, JOHN DOLAN, SEAN O'NEIL, CAROL ROSATI, KRISTOFER ENLOW, and JOHN HICKS, Defendants-Appellees.

Nos. 353097, 354162

Court of Appeals of Michigan

December 2, 2021

UNPUBLISHED

Oakland Circuit Court LCNo. 2020-179219-CZ

Before: Swartzle, P.J., and Cavanagh and Gadola, JJ.

PER CURIAM.

In Docket No. 353097, plaintiffStephen Emsley appeals as of right the trial court's order granting summary disposition to defendant, the Charter Township of Lyon Board of Trustees(the Board), under MCR 2.116(C)(10).In Docket No. 354162plaintiffs, Mr. Sunshine^[1] and Emsley, appeal as of right the order of the trial court granting defendants, the Board and its individual members, summary disposition under MCR 2.116(C)(7) on the basis of res judicata, collateral estoppel, and governmental immunity, and dismissing plaintiffs' claims against the Board's attorney Carol Rosati, under MCR 2.116(C)(8).We affirm the challenged orders of the trial court in both appeals.

I.FACTS

These consolidated cases involve challenges under the Open Meetings Act (OMA), MCL 15.261 et seq., to certain closed sessions conducted by the Board.In Docket No. 353097, Emsley initiated a lawsuit against the Board alleging that it repeatedly violated the requirements of the OMA when it went into closed session during public board meetings on April 5, 2010, August 7, 2017, November 6, 2017, December 4, 2017, January 2, 2018, February 5, 2018, June 4, 2018, September 4, 2018, and November 7, 2018.In each instance, the Board went into a closed session for the stated purpose of considering attorney-client privileged communications.In his amended complaint, Emsley alleged that on the specified meeting dates the Board failed to comply with the procedures for going into a closed session under the OMA and also used the closed sessions to consider public policy matters with the Board's attorney that should have been deliberated publicly.

The Board moved for summary disposition under MCR 2.116(C)(8) and (10), arguing that it fully complied with the OMA when it entered the closed sessions to discuss privileged communications with its counsel.The Board asserted that in compliance with § 8(h) of the OMA, MCL 15.268(h), on each date the Board announced that it was entering into a closed session to consider a written legal communication from its attorney, that contrary to Emsley's allegations it was not required to identify the privileged documents to be discussed before entering the closed sessions, and that there was no evidence that the Board exceeded the proper scope of any closed session.The Board supported its motion under MCR 2.116(C)(10) with the affidavit of Gary August, the township's special counsel, detailing the subjects covered during the closed sessions.

In response to the motion for summary disposition, Emsley argued in part that the Board again violated the OMA on August 5, 2019, a date not included in Emsley's complaint, by improperly entering into a closed session to discuss written communications from its attorney.Following a hearing, the trial court granted the Board's motion for summary disposition under MCR 2.116(C)(10), finding no genuine issue of material fact regarding the alleged violations of the OMA.The trial court determined that the Board had complied with the requirements of the OMA when going into the closed sessions, rejecting Emsley's arguments that the Board failed to satisfy the requirements of the OMA.

Emsley moved for reconsideration of the trial court's order granting the Board summary disposition under MCR 2.116(C)(10), and in response the Board submitted affidavits from Carol Rosati and Lisa Anderson, attorneys who participated in the closed sessions.After reviewing in camera the Board's meeting minutes, closed session minutes, and attorney-client communications for the relevant meetings including the August 5, 2019 meeting, the trial court denied the motion for reconsideration.

While Emsley's motion for reconsideration was pending before the trial court in Docket No. 353097, plaintiffs initiated a second lawsuit against the Board, the individual Board members, and the Board's attorney, Carol Rosati(Docket No. 354162).Plaintiffs alleged that the Board violated the OMA by meeting in closed session during a public meeting on August 5, 2019, to discuss a written communication from the Board's attorney.Plaintiffs alleged that the written attorney communication was used as a subterfuge to call a closed session to improperly discuss a potential lawsuit that was not yet pending.Plaintiffs alleged that the individual board members acted in concert to evade the requirements of the OMA, engaging in a civil conspiracy to violate the OMA.Plaintiffs also alleged that Rosati, as the township's attorney, violated the OMA as a public official and aided and abetted the conspiracy to violate the OMA.

The Board and its members moved for summary disposition in part under MCR 2.116(C)(7).The Board contended that plaintiffs' claims were barred by res judicata and collateral estoppel because the trial court previously decided the merits of any claims related to the August 5, 2019 meeting in Emsley's first lawsuit, and that the civil conspiracy claim was barred by governmental immunity because all defendants associated with the Board were acting within the scope of their legislative authority.Rosati moved for summary disposition under MCR 2.116(C)(6), (7), (8), and (10), asserting that she was not a public official, that there was no civil conspiracy because any underlying tort alleged against defendants was barred by governmental immunity, and that plaintiffs' claims were also barred by res judicata and collateral estoppel.

The trial court granted defendants' motions and dismissed plaintiffs' claims against the Board and the individual board members under MCR 2.116(C)(7), finding that plaintiffs' claims were precluded by res judicata and collateral estoppel.The trial court stated, in relevant part:

The Court has already decided, in a final judgment, that the Board did not violate the OMA when it met in closed session on August 5, 2019 to discuss a memorandum from its attorney.Although the August 5 meeting was not part of Emsley's first amended complaint in the second lawsuit, his subsequent briefs repeatedly referred to the August 5 meeting, that meeting was discussed at oral argument on the motion for reconsideration, and the Court expressly included that meeting in its opinion and order denying the motion for reconsideration.

The addition of Mr. Sunshine as a plaintiff does not change the outcome.The complaint alleges Mr. Sunshine is a "citizens group organized to promote meetings of Michigan Public Bodies," but there is no record of Mr. Sunshine being a registered corporate entity or assumed name.In any event, Mr. Sunshine would be in privity with Emsley, because they represent the same legal right and have a "substantial identity of interests."Baraga Co v State Tax Comm, 466 Mich. 264, 269-270; 645 N.W.2d 13(2002).

The trial court also dismissed the civil conspiracy claim against the Board members, holding that plaintiffs had not pleaded facts in avoidance of governmental immunity.The trial court also granted Rosati's motion for summary disposition under MCR 2.116(C)(8), finding that Rosati was neither a public official nor a member of the Board.The trial court further found that absent an underlying actionable tort, the claim against Rosati for civil conspiracy was subject to dismissal.Plaintiffs now appeal.

II.DISCUSSION

A.STANDARD OF REVIEW

Plaintiffs raise a series of challenges to the trial court's orders^[2] granting defendants summary disposition in both consolidated cases.We review de novo a trial court's decision to grant or deny a motion for summary disposition.El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665(2019).We also review de novo questions of statutory interpretation, Vermilya v Delta College Bd of Trustees, 325 Mich.App. 416, 418; 925 N.W.2d 897(2018), and the application of a legal doctrine, such as res judicata.SeeEstes v Titus, 481 Mich. 573, 578-579; 751 N.W.2d 493(2008).

MCR 2.116(C)(7) provides for summary disposition on the basis of release, payment, prior judgment, or immunity granted by law.Clay v Doe, 311 Mich.App. 359, 362; 876 N.W.2d 248(2015).When reviewing a trial court's decision on a motion for summary disposition under MCR 2.116(C)(7), we consider all documentary evidence in the light most favorable to the non-moving party, id., accepting the complaint as factually accurate unless specifically contradicted by affidavit or other documentation.Frank v Linkner, 500 Mich. 133, 140; 894 N.W.2d 574(2017).If the facts are undisputed, and if reasonable minds could not differ regarding the legal effect of the facts, whether summary disposition is proper is a question of law for the Court.Estate of Miller v Angels' Place, Inc, 334 Mich.App. 325, 330; 964 N.W.2d 839(2020).

A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the claim.El-Khalil, 504 Mich. at 159.When reviewing a grant or denial of summary disposition under MCR 2.116(C)(8), we consider the motion based upon the pleadings alone and accept all factual allegations as true.Id. at 160.Summary disposition under MCR 2.116(C)(8) is warranted when the claim is so unenforceable that no factual development could justify recovery.Id.

A motion for summary disposition under MCR 2.116(C)(10) tests the factual...