Request for injunctive relief under the Open Meetings Act (OMA); MCL 15.271; “Ongoing violation”; Motion to file a supplemental complaint; MCR 2.118(E); Amending pleadings; MCR 2.118(A); Effect of Citizens for a Better Algonac Cmty Sch v Algonac Cmty Sch (CBACS); Undue delay; Consideration of evidentiary hearing testimony; Motion under MCR 2.116(C)(10); Distinguishing Christopher v Nelson; Whether asserted defenses were affirmative defenses; Distinguishing Kelly-Nevils v Detroit Receiving Hosp

The court concluded that the trial court did not abuse its discretion in denying plaintiffs’ motion to supplement or amend their complaint, or by considering evidentiary hearing testimony in deciding a motion under MCR 2.116(C)(10). It also found that “defendant’s asserted defenses were not affirmative defenses, and thus” it did not waive them. Further, as there was no evidence of ongoing violations, plaintiffs failed to show a genuine issue of material fact as to whether they were entitled to an injunction under the OMA. In a prior appeal (Vermilya I), it affirmed summary disposition for plaintiffs “on their claim that defendant violated the OMA by going into closed session without disclosing the name of” a pending case to be discussed. The case was returned to the trial court and reassigned to another judge. When plaintiffs submitted a proposed closing order granting them injunctive relief, defendant objected on the basis “the trial court had never ordered an injunction.” An evidentiary hearing was conducted to determine if such relief was needed. Plaintiffs argued on appeal that the court’s decision in CBACS “was a new event that supported the filing of” their proposed supplemental complaint. But while CBACS was decided after they filed their original complaint, the supplemental complaint sought to allege “additional OMA violations that occurred before” they filed the original complaint. They sought to add these allegations “to establish grounds for an injunction consistent with the standards enunciated in CBACS. Therefore, the additional claims did not come within the standards of a supplemental pleading under MCR 2.118(E).” The court added that “CBACS did not announce a new standard” for injunctive relief under MCL 15.271(1). Further, the court concluded that as the evidence showed “there was no longer an ongoing violation, and that plaintiffs were not at risk of immediate and irreparable harm[,]” the trial court did not err in granting defendant summary disposition. The “evidence established a commitment to compliance and a clear break from defendant’s past pattern of concealing the names of specific cases to be discussed in closed session.” Its prior violations were due to a misunderstanding of the OMA’s requirements, which Vermilya I clarified. The court affirmed summary disposition for defendant as to plaintiffs’ request for injunctive relief under the OMA.