ROBERT J DEITRICK JR V CITY OF CHARLOTTE
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT J. DEITRICK, JR.,
UNPUBLISHED
April 19, 2005
Plaintiff-Appellant,
v
CITY OF CHARLOTTE and CHARLOTTE CITY
COUNCIL,
No. 254678
Eaton Circuit Court
LC No. 03-001257-NZ
Defendants-Appellees.
Before: Fort Hood, P.J., and Meter and Schuette, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s order granting defendants’ motion for
summary disposition. We affirm. This case arises from a closed meeting conducted by
defendant Charlotte City Council, after which plaintiff was terminated as city attorney by the
council during an open session.
We review a trial court’s decision with regard to a motion for summary disposition de
novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). Although the trial
court failed to specify the subrule under which it granted summary disposition, this does not
affect our ability to review the matter. We must simply conduct our review under the correct
subrule. Verna’s Tavern, Inc v Heite, 243 Mich App 578, 584-585; 624 NW2d 738 (2000).
Because the trial court considered factual evidence beyond the complaint in granting summary
disposition in this case, it clearly granted summary disposition under MCR 2.116(C)(10). A
motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the
plaintiff’s claims. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). When
deciding such a motion, a court must consider the pleadings, affidavits, depositions, admissions,
and other documentary evidence submitted in the light most favorable to the nonmoving party.
Id. Summary disposition should be granted under MCR 2.116(C)(10) if there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law. Babula v
Roberson, 212 Mich App 45, 48; 536 NW2d 834 (1995). “A genuine issue of material fact exists
when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an
issue upon which reasonable minds might differ.” West v General Motors Corp, 469 Mich 177,
183; 665 NW2d 468 (2003).
Plaintiff first argues that the closed city council session at issue was not justified by way
of the attorney-client privilege and therefore violated the Open Meetings Act (OMA), MCL
-1-
15.261 et seq. This effectively constitutes an argument that the trial court erred in concluding
that plaintiff failed to establish a genuine issue of material fact with regard to the claimed
violation of the OMA. We disagree that the trial court erred.
Defendants assert that the OMA exception provided by MCL 15.268(h)1 authorized the
closed session, in that the council considered a written opinion of specially appointed counsel
regarding at-will employees. This Court has stated that the OMA must be strictly construed
when interpreting permissible purposes for closed sessions so as to limit situations not open to
the public. Booth Newspapers, Inc v Wyoming City Council, 168 Mich App 459, 467; 425
NW2d 695 (1988). However, while construing MCL 15.243(g),2 this Court concluded that a
written opinion from counsel was “material” subject to the attorney-client privilege and that,
therefore, a closed meeting to discuss such a written opinion was permissible. Booth
Newspapers, Inc v Regents of University of Mich, 93 Mich App 100, 106-107; 286 NW2d 55
(1979). This Court later interpreted Regents of University of Mich as only allowing closed
session discussions regarding written legal opinions, not oral legal opinions, of counsel.
Wyoming City Council, supra at 467, 469. Additionally, the scope of the discussion must be
limited to legal matters and not include incidental, non-legal matters. Id. at 468.
Because a closed session places the party filing suit at a disadvantage in gathering factual
information, the burden of proving that a closed session was exempt is placed on the party
claiming the exemption, defendants in this case. Detroit News, Inc v Detroit, 185 Mich App 296,
301; 460 NW2d 312 (1990). Here, the minutes of the closed meeting reflect that the written
opinion of the specially appointed counsel was the only topic of discussion at the closed session.
Plaintiff has not presented contrary evidence that anything but the written opinion was discussed
at the closed session. While plaintiff made an unsubstantiated assertion in his response to
defendants’ motion for summary disposition about a statement from a city council member that
allegedly indicated the scope of the discussion at the closed meeting was greater, this bald
assertion was not supported by an affidavit or other documentary evidence. Corley, supra at
278. Accordingly, plaintiff failed to establish a genuine issue of material fact because he failed
to present substantively admissible evidence in opposition to defendants’ evidence indicating
that only the written legal opinion was discussed during the closed meeting. See, generally,
Adair v Michigan, 470 Mich 105, 120; 680 NW2d 386 (2004).
Responding to defendants’ argument that the closed meeting was allowed by MCL
15.268(h), plaintiff points to another OMA exemption, MCL 15.268(a), which reads, in pertinent
part, that “[a] public body may meet in a closed session . . . [t]o consider the dismissal,
suspension, or disciplining of . . .a public officer, employee, staff member, or individual agent, if
the named person requests a closed hearing.” MCL 15.268(a) (emphasis added). Plaintiff
1
MCL 15.268(h) provides that “[a] public body may meet in a closed session . . . [t]o consider
material exempt from discussion or disclosure by state or federal statute.”
2
This is the Freedom of Information Act exemption for “[i]nformation or records subject to the
attorney-client privilege.” At the time of Booth Newspapers v Regents of University of Mich, 93
Mich App 100; 286 NW2d 55 (1979), the statutory section was codified as MCL 15.243(h).
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argues that defendants used the attorney-client privilege in an attempt to circumvent the
requirements of MCL 15.268(a). However, it is apparent, in our opinion, that each subsection
enumerated in MCL 15.268, which contains all the permissible purposes for which a public body
may meet in a closed session, should be read in isolation as setting forth an independent OMA
exception. That the closed meeting may not have been authorized by MCL 15.268(a) is
immaterial because it was clearly allowed by MCL 15.268(h). In sum, the trial court did not err
in concluding that plaintiff failed to establish a genuine issue of material fact with regard to the
claimed OMA violation.
Plaintiff next argues that summary disposition was improper because he was not allowed
sufficient time to complete discovery. Generally, summary disposition is premature if granted
before discovery on a disputed issue is complete, but it is not premature if further discovery does
not have a fair chance of uncovering factual support for opposing the motion. Coblentz v Novi,
264 Mich App 450, 455; 691 NW2d 22 (2004). In opposing a motion for summary disposition
because discovery is not complete, the opposing party “must provide some independent evidence
that a factual dispute exists.” Michigan National Bank v Metro Institutional Food Service, Inc,
198 Mich App 236, 241; 497 NW2d 225 (1993). Mere speculation from the nonmoving party
that further discovery might produce pertinent facts is not enough. Ensink v Mecosta Co
General Hosp, 262 Mich App 518, 540-541; 687 NW2d 143 (2004).
Plaintiff asserts that a factual question exists concerning whether the closed session
involved a discussion beyond the information contained in the special counsel’s written opinion.
However, plaintiff has provided no evidence to support this claim. Further, discovery was to be
completed by March 1, 2004, and the summary disposition hearing was held on February 23,
2004. Plaintiff has stated, without providing specifics regarding what further discovery he would
have undertaken in that mere week-long period, that if he were allowed to continue discovery, he
would have been able to present proof that defendants violated the OMA and discussed his
termination in private. However, the date to complete discovery had nearly arrived, and plaintiff
had failed to produce any independent evidence that defendants violated the OMA. In these
circumstances, we conclude there was no fair chance that further discovery would have
uncovered support for plaintiff’s position.
Finally, plaintiff claims that defendants violated the Charlotte City Charter by conducting
the closed meeting. This issue was not properly preserved for appellate consideration because it
was not raised in the trial court. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489
(1999). We will nevertheless review the issue because it involves a question of law and all facts
necessary for its resolution have been presented. Brown v Loveman, 260 Mich App 576, 599;
680 NW2d 432 (2004). The OMA supersedes all local charter provisions related to the
requirements for open meetings of local public bodies that were in force when it was enacted.
MCL 15.261(2). The OMA became effective on January 1, 1977. MCL 15.275. Because the
Charlotte City Charter was enacted on April 2, 1962, the relevant charter provision has been
superseded by the OMA.3
3
While the OMA allows a public body to adopt provisions “requir[ing] a greater degree of
(continued…)
-3-
Affirmed.
/s/ Karen M. Fort Hood
/s/ Patrick M. Meter
/s/ Bill Schuette
(…continued)
openness relative to meetings of public bodies than the standards provided for in [the OMA]”
after the OMA’s effective date, see MCL 15.261(3), that is immaterial to this case because
plaintiff relies on an original provision of the city charter adopted in 1962, before the OMA’s
effective date.
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