DALE GRYZEN V TOWNSHIP OF WEBBER
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STATE OF MICHIGAN
COURT OF APPEALS
DALE GRYZEN and CHARLENE GRYZEN,
UNPUBLISHED
November 9, 2004
Plaintiffs-Appellants,
v
No. 247979
Lake Circuit Court
LC No. 01-005616-CZ
TOWNSHIP OF WEBBER, WEBBER
TOWNSHIP BOARD OF REVIEW, and
PATRICIA MERRILL,
Defendants-Appellees.
Before: Cooper, P.J., and Fitzgerald and Hoekstra, JJ.
PER CURIAM.
Plaintiffs appeal as of right the order granting summary disposition in favor of
defendants. We affirm.
Plaintiffs’ first amended complaint contained two counts. In the first count, plaintiffs
alleged that defendants violated the Open Meetings Act (OMA), MCL 15.261 et seq. Plaintiffs
alleged, among numerous other allegations, that plaintiffs were not permitted to address
defendant board of review at its July 17, 2001, meeting in violation of the OMA, that the notice
of the meeting did not comply with the OMA, and that the minutes from the meeting did not
comply with the OMA. In the second count, plaintiffs alleged that defendant Merrill, the
township’s tax assessor, intentionally inflicted emotional distress upon them in response to
plaintiffs’ involvement in a petition “encouraging the recall or severance of Defendant Merrill
from her employment.” Specifically, plaintiffs alleged that defendant Merrill made obscene
gestures towards plaintiffs near their residence and told plaintiffs that their actions would “cost”
them.
Defendants moved for summary disposition under MCR 2.116(C)(7), (8), and (10).
Defendants argued that plaintiffs’ intentional infliction of emotional distress (IIED) claim was
barred by governmental immunity. Regarding plaintiffs’ OMA claim, defendants argued that
defendant board of review’s July 17, 2001, meeting complied with the requirements of the OMA.
The trial court granted defendants’ motion.
Plaintiffs argue on appeal that defendant board of review’s meeting of July 17, 2001,
violated the OMA in numerous respects. This Court reviews “for an abuse of discretion a trial
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court’s decision whether to invalidate a decision made in violation of the OMA.” Herald Co, Inc
v Tax Tribunal, 258 Mich App 78, 83; 669 NW2d 862 (2003).
“[T]he purpose of the OMA is to promote governmental accountability by facilitating
public access to official decision making and to provide a means through which the general
public may better understand issues and decisions of public concern.” Kitchen v Ferndale City
Council, 253 Mich App 115, 125; 654 NW2d 918 (2002), citing Booth Newspapers, Inc v Univ
of Michigan Bd of Regents, 444 Mich 211, 231; 507 NW2d 422 (1993). “The threshold issue
under the OMA is whether an entity is a ‘public body.’” Herald Co v Bay City, 463 Mich 111,
129; 614 NW2d 873 (2000). The parties agree that defendant township and defendant board of
review are public bodies as defined by MCL 15.262(a). Therefore, defendant township and
defendant board of review must comply with the OMA.
Plaintiffs contend that defendant township violated MCL 15.263(5) of the OMA because
plaintiffs were not permitted to address defendant board of review at its July 17, 2001, meeting.
According to plaintiffs, defendant Merrill “prohibited” them from addressing defendant board of
review at the meeting by taking individual citizens into her office and making “secret
determinations of assessed valuations while within an enclosed office, to the exclusion of
Plaintiffs and other citizens.” Defendant board of review thereafter adopted or “rubber stamped”
defendant Merrill’s determinations without public discussion.
MCL 15.263(5) provides that “[a] person shall be permitted to address a meeting of a
public body under rules established and recorded by the public body.” Even accepting as true
plaintiffs’ claim that defendant Merrill somehow “prohibited” plaintiffs from addressing
defendant board of review, such action would not constitute a violation of the OMA because
Merrill is an individual and an “individual . . . is not a public body for the purposes of the
OMA.”1 Herald Co, supra at 131. Furthermore, plaintiff Dale Gryzen made statements in his
deposition that reveal that plaintiffs did, in fact, address defendant board of review. In his
deposition, Dale Gryzen acknowledged that plaintiffs “did talk to the Review Board a little.”
Finally, plaintiffs’ complaint failed to allege specific facts regarding how they attempted to
address defendant board of review and which board members refused to afford them a fair
opportunity to address the board of review. Summary disposition of an OMA claim is proper if
the “plaintiffs’ complaint failed to allege facts regarding the precise nature of the alleged OMA
violations, the nature of the public impairment, or the date or time on which the alleged violation
occurred.” Knauff v Oscoda Co Drain Comm’r, 240 Mich App 485, 495; 618 NW2d 1 (2000).
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We note that it appears from the lower court record that defendant Merrill was not a member of
defendant board of review. While plaintiffs claim that defendant Merrill was an “adjunct
member” of defendant board of review in ¶ 15 of their first amended complaint, plaintiffs’
counsel acknowledged on the record at the summary disposition hearing “that maybe she wasn’t
an official member of the board of review.” Moreover, in defendants’ answer to plaintiffs’ first
amended complaint, defendants denied the allegation, stating that defendant Merrill was
defendant township’s “appointed assessor” and “not a member of the Board of Review.”
Furthermore, defendant Merrill is not listed in the minutes from defendant board of review’s July
17, 2001, meeting as a board member.
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Plaintiffs alleged in their first amended complaint that they “desired and attempted to address the
Webber Township Board of Review at the meeting held on July 17, 2001,” but that they “were
not afforded a fair opportunity to address the Board of review.” “Plaintiffs’ mere conclusions,
unsupported by factual allegations, will not suffice to state a cause of action.” Id. Absent such
factual details, it is impossible to determine whether defendant board of review committed a
violation of MCL 15.263(5).
Plaintiffs next argue that defendant board of review’s minutes from the July 17, 2001,
meeting do not comply with MCL 15.269. Even accepting as true plaintiffs’ alleged deficiencies
in the minutes of defendant board of review’s July 17, 2001, meeting, “deficiencies in the
maintenance of meeting minutes do not provide grounds for invalidating action taken by a public
body.” Willis v Deerfield Twp, 257 Mich App 541, 553; 669 NW2d 279 (2003). Moreover, as
the trial court observed, plaintiffs were present at the July 17, 2001, meeting, and they received a
favorable outcome at the meeting regarding their homestead exemption. Therefore, none of the
alleged deficiencies in the minutes complained of by plaintiffs impaired plaintiffs’ rights. “MCL
15.263 does not provide for invalidation of a decision premised on a procedural error in the
keeping of the meeting minutes.” Id.
Plaintiffs’ next argument regarding the minutes is that defendant board of review’s notice
of the July 17, 2001, meeting did not comply with MCL 15.264 because the name of the
governmental unit was not clearly stated and the address and telephone number were omitted.
MCL 15.264(a) provides that “public notice shall always contain the name of the public body to
which the notice applies, its telephone number if one exists, and its address.” The notice as
published in the Lake County Star did not comply with the OMA because it did not contain
defendant board of review’s telephone number or address. MCL 15.264(a). Despite that fact,
plaintiffs, as well as numerous other members of the public, were present at the July 17, 2001,
meeting. The failure of a public body to provide proper notice of a meeting will not invalidate
the public body’s decision if “there was substantial compliance with the OMA notice
requirements” and “the purpose of the OMA was essentially and realistically fulfilled.” Nicholas
v Meridian Charter Twp Bd, 239 Mich App 525, 532; 609 NW2d 574 (2000). In this case, the
notice substantially complied with the notice requirements of the OMA because it contained the
name of the public body as well as the date, time, and place of the meeting. MCL 15.264(a);
MCL 15.265(2). Moreover, the OMA’s purpose of facilitating public access to official decision
making was satisfied because members of the public, including plaintiffs, were present at and
had access to the July 17, 2001, meeting and were afforded the means to better understand the
issues and decisions made at the meeting. Thus, the trial court did not abuse its discretion in
refusing to invalidate the decisions made by defendant board of review at its July 17, 2001,
meeting.
Plaintiffs next argue that the trial court erred in dismissing plaintiffs’ IIED claim against
defendant Merrill. The trial court’s statements on the record at the summary disposition hearing
indicate that the trial court granted summary disposition of plaintiffs’ IIED claim under MCR
2.116(C)(8). This Court reviews de novo the trial court’s decision to grant summary disposition
under MCR 2.116(C)(8). Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001).
“A motion for summary disposition brought under MCR 2.116(C)(8) tests the legal sufficiency
of the complaint on the basis of the pleadings alone.” Id.; see also MCR 2.116(G)(5). “All well
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pleaded factual allegations are accepted as true and construed in a light most favorable to the
nonmovant.” Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999).
To establish a claim of intentional infliction of emotional distress, the plaintiff must show
(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe
emotional distress. Bernhardt v Ingham Regional Medical Center, 249 Mich App 274, 278; 641
NW2d 868 (2002). To constitute extreme and outrageous conduct sufficient to support a claim
for intentional infliction of emotional distress, the conduct must have been “‘so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.’” Id., quoting Roberts v
Auto-Owners Ins Co, 422 Mich 594, 602-603; 374 NW2d 905 (1985), quoting 1 Restatement
Torts, 2d, § 46, comment d, pp 72-73. “A defendant is not liable for ‘mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities.’” Lewis v LeGrow, 258 Mich App
175, 196; 670 NW2d 675 (2003), quoting Doe v Mills, 212 Mich App 73, 91; 536 NW2d 824
(1995). The test to determine whether a person’s conduct was extreme and outrageous is
whether “‘the recitation of the facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim, “Outrageous!”’” Graham v Ford, 237
Mich App 670, 674-675; 604 NW2d 713 (1999), quoting Roberts, supra at 603. It is initially a
matter for the trial court to determine whether the defendant’s conduct reasonably may be
regarded as so extreme and outrageous as to permit recovery. Teadt v Lutheran Church Missouri
Synod, 237 Mich App 567, 582; 603 NW2d 816 (1999). However, if reasonable persons could
differ on whether the defendant’s conduct was sufficiently extreme and outrageous, it is for the
jury to determine whether the conduct has been sufficiently extreme and outrageous to result in
liability. Id.
In plaintiffs’ first amended complaint, plaintiffs alleged: “On more than one occasion, in
close proximity to Plaintiffs’ residence and at other locations about the township, Defendant
Merrill intentionally made obscene gestures toward Plaintiffs.” In addition, plaintiffs alleged
that defendant Merrill, in response to plaintiffs’ involvement in the recall petition, stated to
plaintiffs, “this is gonna cost you.”
Plaintiffs, citing Warren v June’s Mobile Home Village & Sales, Inc, 66 Mich App 386,
391; 239 NW2d 380 (1976), suggest that defendant Merrill’s conduct was extreme and
outrageous because defendant Merrill, as tax assessor, had power to affect plaintiffs’ interests.
However, notwithstanding defendant Merrill’s power to affect plaintiffs’ interests, we find that
defendant Merrill’s conduct constituted nothing more than insults, indignities, threats,
annoyances, or petty oppressions. Such conduct is insufficient as a matter of law to be
considered extreme and outrageous. Lewis, supra at 196. Even accepting the allegations in
plaintiffs’ first amended complaint as true, defendant Merrill’s conduct of making obscene
gestures to plaintiffs and threatening that plaintiffs’ involvement with the recall petition would
“cost” them, while crude and unprofessional, does not rise to the level of extreme and outrageous
conduct. We conclude that defendant Merrill’s conduct was not so atrocious and intolerable that
it would arouse the resentment of an average member of the community and lead him to exclaim,
“Outrageous!” Graham, supra at 674-675. Accordingly, because reasonable minds could not
differ regarding whether defendant Merrill’s conduct was extreme and outrageous, the trial court
did not err in granting defendants’ motion for summary disposition of plaintiffs’ IIED claim
under MCR 2.116(C)(8).
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Plaintiffs also argue on appeal that defendant Merrill’s conduct somehow invaded their
privacy rights. Specifically, plaintiffs contend that defendant Merrill’s conduct infringed upon
plaintiffs’ right to be “left alone” and to be protected from wrongful intrusion into their lives.
Plaintiffs failed to properly present this issue in their “Statement of Questions Involved” and
have therefore waived appellate review of this issue. Campbell v Sullins, 257 Mich App 179,
192; 667 NW2d 887 (2003). Consequently, we decline to review this issue.
In light of our conclusion that the trial court did not err in dismissing plaintiffs’ IIED
claims because defendant Merrill’s conduct was not extreme and outrageous, we need not
address plaintiffs’ governmental immunity arguments.
Affirmed.
/s/ Jessica R. Cooper
/s/ E. Thomas Fitzgerald
/s/ Joel P. Hoekstra
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