DAVID SUTTON JR V CITY OF OAK PARK
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STATE OF MICHIGAN
COURT OF APPEALS
DAVID SUTTON, JR.,
FOR PUBLICATION
May 14, 2002
9:05 a.m.
Plaintiff-Appellee,
v
No. 229640
Oakland Circuit Court
LC No. 00-021310-AW
CITY OF OAK PARK and G. ROBERT
SEIFERT,
Defendants-Appellants.
Updated Copy
August 16, 2002
Before: Holbrook, Jr., P.J., and Jansen and Wilder, JJ.
WILDER, J., (concurring.)
I join with the majority in finding that the records at issue in this case are exempt from
disclosure under MCL 15.243(1)(s)(ix). I write separately to explain why I conclude that the
trial court had discretion to consider this ground for dismissal of plaintiff's action asserted in
defendant's motion for reconsideration, despite defendant's failure to assert this ground in its
motion for summary disposition.
MCR 2.119(F)(3) provides:
(3) Generally, and without restricting the discretion of the court, a motion
for rehearing or reconsideration which merely presents the same issues ruled on
by the court, either expressly or by reasonable implication, will not be granted.
The moving party must demonstrate a palpable error by which the court was
misled and show that a different disposition of the motion must result from
correction of the error. [Emphasis added.]
Here, the trial court erred in failing to recognize its discretion to address the ground asserted in
defendants' motion for reconsideration. See Kowalski v Fiutowski, 247 Mich App 156, 165-166;
635 NW2d 502 (2001). The trial court's failure to recognize its discretion is particularly
significant here because the record clearly establishes that all the evidence necessary to support
summary disposition in favor of defendants based on the personnel records exemption, MCL
15.243(1)(s)(ix), had been submitted to the trial court as exhibits attached to the motion for
summary disposition and were available to the trial court as it conducted its in camera hearing.
Thus, while a party may be precluded from submitting new evidence to the trial court in support
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of a motion for reconsideration, see Maiden v Rozwood, 461 Mich 109, 126, n 9; 597 NW2d 817
(1999); Quinto v Cross & Peters Co, 451 Mich 358, 366, n 5; 547 NW2d 314 (1996) (in ruling
on a motion for summary disposition, a court considers the evidence then available to it), a party
raising a newly asserted basis for dismissal in a motion for reconsideration does not necessarily
run afoul of Maiden and Quinto in the appropriate circumstances.
/s/ Kurtis T. Wilder
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