CHARLES PORPHIR, UNPUBLISHED
August 6, 1999
Plaintiff-Appellant/Cross-Appellee,
v No. 206637
Mason Circuit Court
BOARD OF COUNTY COMMISSIONERS OF LC No. 96-011393 CZ
MASON COUNTY, MASON COUNTY
SURVEY AND REMONUMENTATION PEER
REVIEW GROUP, MASON COUNTY
REMONUMENTATION BOARD and
KENNETH L. ROSS, Individually as MASON
COUNTY SURVEYOR,
Defendants-Appellees/Cross-
Appellants.
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Before: Gage, P.J., and White and Markey, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court's order granting
defendants' motion for summary disposition pursuant to MCR 2.116(C)(10)1
and denying plaintiff's motion for summary disposition. Defendants
cross-appeal, requesting that this Court affirm the trial court's decision.
We affirm.
This case involves a suit brought pursuant to the Michigan Open
Meetings Act (the OMA), MCL 15.261 et seq.; MSA 4.1800(11) et seq., based
on four meetings conducted by defendant Mason County Survey and
Remonumentation Board (the Board) in the basement of the home of defendant
Mason County Surveyor, Kenneth Ross. The last such meeting occurred in
December 1994. Ross posted public notices of the meetings on a utility pole
on his lot.
In September 1996, plaintiff filed a complaint against defendants,
alleging that they violated §§ 3, 4, and 5 of the OMA by holding meetings
in a residential dwelling and not providing proper notice of the meetings.
Defendants moved for summary disposition based, in part, on the fact that
the Board was already subject to an injunction entered pursuant to this
Court's decision in Schulke v Mason County Bd of Comm'rs, et al.,
unpublished opinion per curiam of the Court of Appeals, issued December 17,
1996 (Docket No. 189450). The plaintiff,
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Gaye Schulke, had brought suit under the OMA against the same defendants as
plaintiff in this case, based on the same four meetings. Schulke was
represented by the same attorney who filed the instant plaintiff's
complaint. Although the trial court in Schulke awarded summary disposition
to defendants, this Court reversed and remanded, finding that because
defendants admitted to violating the OMA and Schulke brought suit under the
OMA, Schulke was entitled to injunctive relief as well as attorney fees.
Subsequently, a stipulated order was entered, prohibiting defendants from
meeting in any privately owned buildings, requiring them to post notices of
all their meetings in the Mason County Courthouse, and rendering the
decisions reached at the four meetings challenged null and void.
Plaintiff first argues on appeal that because defendants admitted to a
violation of the OMA and he had brought an action to enjoin them, he was
entitled to injunctive relief as a matter of law under MCL 15.271; MSA
4.1800(21). Whether injunctive relief should be granted is within the sound
discretion of the trial court and must be based on the facts of the
particular case. Wilkins v Gagliardi, 219 Mich App 260, 276; 556 NW2d 171
(1996). Injunctive relief should be granted only when (1) justice requires
it, (2) there is no adequate remedy at law, and (3) there exists a real and
imminent danger of irreparable harm. Id.
The purpose of the OMA, MCL 15.261 et seq.; MSA 4.1800(11) et seq., is
to promote openness and accountability in government. Booth Newspapers, Inc
v University of Michigan Bd of Regents, 444 Mich 211, 222-223; 507 NW2d 422
(1993). Accordingly, MCL 15.271(1); MSA 4.1800(21)(1), which governs
actions for injunctive relief for noncompliance with the OMA, provides as
follows:
If a public body is not complying with this act, the attorney
general, prosecuting attorney of the county in which the public body
serves, or a person may commence a civil action to compel compliance
or to enjoin further noncompliance with this act.
Defendants' last alleged violation of the OMA occurred in December
1994. Nearly two years later, on September 6, 1996, plaintiff filed his
complaint. Pursuant to the stipulated order entered in the Schulke case on
February 21, 1997, with which plaintiff's counsel is intimately familiar,
defendants were already enjoined from meeting in private or without
providing public notice at the time the trial court heard oral arguments on
the parties' motions and issued its decision in December 1997. At that
point, the Board had complied with the OMA for approximately three years.
Thus, we find that there was no real and imminent danger of irreparable
harm and, therefore, no reason to impose an injunction. Wilkins, supra at
276.
Plaintiff maintains that he is entitled to injunctive relief beyond
that obtained pursuant to Schulke because the prior injunctive order does
not provide him specific protection against future actions of defendants
that could adversely affect his property. We find, however, that this
relief is not contemplated by the OMA. As noted above, the purpose of the
OMA is to promote government openness and accountability. Booth Newspapers,
supra. Nothing in the OMA suggests that a plaintiff may obtain injunctive
relief against actions by a public body that may affect him personally at
some point in the future. The language of the OMA's injunction provision
contemplates only actions brought "to compel compliance or to enjoin
further
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noncompliance" with the OMA. MCL 15.271(1); MSA 4.1800(21)(1) (emphasis
added). Therefore, because plaintiff has failed to establish a genuine
issue of material fact with regard to his claim for injunctive relief under
the OMA, we find that summary disposition for defendants was proper.
Singerman v Municipal Service Bureau, Inc, 455 Mich 135, 139; 565 NW2d 383
(1997) (A motion for summary disposition pursuant to MCR 2.116(C)(10) tests
a claim's factual support; the motion should be granted when the record
that might be developed would not leave open an issue on which reasonable
minds might differ.).2
Lastly, plaintiff contends that he was entitled to attorney fees in
this case, even if he is not successful in obtaining the injunctive relief
he requested. The clear language of the attorney fee provision of the OMA
conditions the award of attorney fees on (1) a public body not complying
with the act, (2) a person initiating a civil action against that body for
injunctive relief compelling compliance or enjoining further noncompliance
with the OMA, and (3) the person successfully obtaining relief in the
action. MCL 15.271(4); MSA 14.8100(21)(4). Although plaintiff argues that
the Legislature intended that anyone expending money to enforce the
provisions of the OMA be entitled to recover his costs and attorney fees,
the language of the statute does not express that intent. Rather, it
specifically conditions recovery on the plaintiff "succeed[ing] in
obtaining relief in the action." The Legislature is presumed to have
intended the meaning it plainly expressed. Nation v WDE Electric Co, 454
Mich 489, 494; 563 NW2d 233 (1997); McFarlane v McFarlane, 223 Mich App
119, 123; 566 NW2d 297 (1997). Although defendants violated the OMA and
plaintiff brought an action for injunctive relief, plaintiff failed to
obtain that relief. Therefore, we find that under the clear language of the
statute plaintiff was not entitled to an award of attorney fees.3 See
Felice v Cheboygan Co Zoning Comm, 103 Mich App 742, 746; 304 NW2d 1
(1981).
Affirmed.
/s/ Hilda R. Gage
/s/ Helene N. White
/s/ Jane E. Markey
_______________________________
1 While defendants moved for summary disposition pursuant to MCR
2.116(C)(4), (7), (8), and (10), the trial court did not indicate under
which of the court rules it granted the motion. Because the court referred
to pleadings outside the record and did not address arguments regarding
subject matter jurisdiction under (C)(4), or any bar to suit under (C)(7),
we assume that the court granted the motion pursuant to MCR 2.116(C)(10).
2 Furthermore, to the extent plaintiff's complaint alleges that the Board's
actions taken at the meetings held in violation of the OMA constituted an
unlawful taking of plaintiff's private property, this claim is without
merit. In count V of his complaint, plaintiff alleged that "the subject
matter of the meetings complained of in this cause of action resulted in
the setting of many quarter sections which will have substantial impact on
public and the Plaintiff's property," and that, "[i]f allowed to stand, the
decisions reached at the meetings complained of in this cause of action
will have a substantial impact on the nature, size and extent of the
Plaintiff's property," effectively "amount[ing] to a taking of the
Plaintiff's property without due process of law." Plaintiff's argument
ignores, however, that after this Court's remand to the trial court in
Schulke,
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supra, defendant stipulated that the Board's decisions made at the four
challenged meetings were null and void. While it could be argued that
plaintiff should be entitled to attorney fees from the time he filed the
complaint in the instant action until the time the stipulated order was
entered in Schulke, supra, plaintiff has not couched his argument in these
terms nor provided evidence from which we could make such a determination,
and it appears that the bulk of the legal work done in the instant case
occurred after the stipulated order was entered on February 20, 1997.
3 Although plaintiff argues that under Menominee Co Taxpayers Alliance, Inc
v Menominee Co Clerk,139 Mich App 814, 920; 362 NW2d 871 (1984) and
Ridenour v Bd of Ed of City of Dearborn School Dist, 111 Mich App 798, 806;
314 NW2d 760 (1981), he is entitled to attorney fees even if he did not
obtain injunctive relief, we note that in those cases, the plaintiffs were
successful in obtaining some relief as a result of their suits, albeit not
in the form of a formal injunction. In this case, plaintiff obtained no
relief as a result of his suit.
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