Robert Davis v. City of Detroit ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ROBERT DAVIS, UNPUBLISHED
March 24, 2020
Plaintiff-Appellant,
v No. 347931
Wayne Circuit Court
CITY OF DETROIT, LC No. 18-015502-CZ
Defendant-Appellee.
Before: BECKERING, P.J., and SAWYER and GADOLA, JJ.
PER CURIAM.
Plaintiff appeals as of right the order granting summary disposition for defendant, denying
plaintiff’s motion for summary disposition, dismissing plaintiff’s amended complaint with
prejudice, and awarding sanctions in favor of defendant. We affirm.
The underlying facts of this case originate on November 14, 2018, when plaintiff
purportedly sent a Freedom of Information Act (FOIA), MCL 15.231 et seq., request via first class
mail to defendant’s FOIA coordinator, Jack Dietrich. Plaintiff requested nine sets of documents
including written and email communications between Detroit’s Mayor, Mike Duggan, and Dr.
Sonia Hassan from January 2015 to the present, all contracts or employment agreements between
defendant and Dr. Hassan from January 2015 to the present, all monetary payments made by
defendant to two nonprofit organizations with which Dr. Hassan is associated, and all contracts
between defendant and Bill Nowling from January 2015 to the present.
On December 5, 2018, plaintiff’s attorney, Andrew A. Paterson, emailed Dietrich asserting
that plaintiff had not received a response to his November 14, 2018 request, and therefore, plaintiff
intended to file a civil action to compel defendant to disclose the requested documents. Dietrich
replied to Paterson the same day informing Paterson that he had not received the November 14,
2018 FOIA request, but he told Paterson that he could email the request and Dietrich would process
it. On December 6, 2018, Paterson emailed Dietrich. Paterson did not send the November 14,
2018 FOIA request, but rather, he requested six of the nine sets of documents originally requested
by plaintiff. Paterson asserted that “this request is made in accordance with Mich.Const.1963, art
9, sec 23 and not the FOIA. My clients November 14, 2018 FOIA request that was previously
-1-
mailed is separate and distinct from this request.” Paterson requested that the documents be made
available for inspection by 4:30 p.m. the following day. On December 7, 2018, Dietrich responded
to Paterson explaining that defendant had no duty to disclose the documents under article 9, § 23,
of Michigan’s 1963 Constitution because that section of the Michigan Constitution only applies to
“ ‘summaries, balance sheets and other compilations’ and not ‘every writing evidencing a receipt
or expenditure.’ ” Dietrich further stated that, “[d]espite the foregoing, and in view of your claim
that the City did not timely respond to the purported Nov 14 FOIA, the city has conducted an
expedited search for all documents responsive to your Dec 6 email request,” and “THERE ARE
NO SUCH DOCUMENTS.”
On December 6, 2018, one day prior to Dietrich’s response, plaintiff filed a complaint for
declaratory judgment alleging four counts. Plaintiff requested that the court (1) declare that
defendant failed to respond to his November 14, 2018 FOIA request, (2) declare that defendant
must immediately disclose the documents requested on November 14, 2018, (3) declare that
defendant must immediately disclose the documents requested on December 6, 2018, in
accordance with article 9, § 23, of Michigan’s 1963 Constitution, and (4) award plaintiff court
costs and attorney fees under MCL 15.240(6) of the FOIA. On January 9, 2019, plaintiff filed an
amended complaint for declaratory judgment. In the amended complaint, plaintiff no longer
alleged claims regarding the November 14, 2018 FOIA request. Rather, plaintiff requested that
the court (1) declare that the December 6, 2018 request constituted a “written request” under the
FOIA, (2) declare that Dietrich’s December 7, 2018 response constituted a “written response” and
“final determination” under the FOIA, (3) declare that the documents requested on December 6,
2018, exist and order defendant to immediately disclose the documents in accordance with the
FOIA, (4) declare that defendant must immediately disclose the documents requested on December
6, 2018, in accordance with article 9, § 23, of Michigan’s 1963 Constitution, and (5) award plaintiff
court costs and attorney fees under MCL 15.240(6) of the FOIA. Defendant filed a motion for
summary disposition arguing that plaintiff could not maintain claims brought under the FOIA
because the December 6, 2018 request was not made in accordance with the FOIA, and defendant
had no duty to disclose the requested documents under article 9, § 23, of Michigan’s 1963
Constitution. Plaintiff also moved for summary disposition arguing that the court should grant
summary disposition for plaintiff on Counts 1, 2, and 4 of plaintiff’s amended complaint. Plaintiff
also argued that summary disposition was premature in regard to Count 3 because there was a
genuine issue of material fact as to whether the requested documents exist. The trial court found
that plaintiff’s claims were frivolous and made solely to harass defendant. The trial court granted
summary disposition for defendant, denied plaintiff’s motion for summary disposition, dismissed
plaintiff’s amended complaint with prejudice, and awarded sanctions for defendant in the amount
of $1,000, concluding that the December 6, 2018 request was not a FOIA request. This appeal
follows.
I. THE FOIA AND ARTICLE 9, § 23, OF MICHIGAN’S 1963 CONSTITUTION
A. THE FOIA
Plaintiff argues that the trial court erred in granting summary disposition for defendant
regarding his claims brought under the FOIA. We disagree.
-2-
Defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10), but
the trial court considered evidence outside the pleadings. Therefore, this Court considers the
motion as having been decided pursuant to MCR 2.116(C)(10). Candler v Farm Bureau Mut Ins
Co of Mich, 321 Mich. App. 772, 776; 910 NW2d 666 (2017). This Court reviews a trial court’s
decision on a motion for summary disposition de novo. Bodnar v St John Providence, Inc, 327
Mich. App. 203, 211; 933 NW2d 363 (2019). A motion under MCR 2.116(C)(10) tests the factual
sufficiency of a claim. El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 160; 934 NW2d 665
(2019). A trial court’s grant of summary disposition under MCR 2.116(C)(10) is proper when the
evidence, “viewed in the light most favorable to the nonmoving party, show[s] that there is no
genuine issue as to any material fact and the moving party is therefore entitled to judgment as a
matter of law.” Lowrey v LMPS & LMPJ, Inc, 500 Mich. 1, 5-6; 890 NW2d 344 (2016). “A
genuine issue of material fact exists when the record leaves open an issue upon which reasonable
minds might differ.” El-Khalil, 504 Mich. at 160 (citation and quotation marks omitted).
“[S]tatutory interpretation of the FOIA presents a question of law that is subject to review de
novo.” Arabo v Mich Gaming Control Bd, 310 Mich. App. 370, 382; 872 NW2d 223 (2015).
“The Freedom of Information Act declares that it is the public policy of this state to entitle
all persons to complete information regarding governmental affairs so that they may participate
fully in the democratic process.” Arabo, 310 Mich. App. at 380 (citation and quotation marks
omitted). “[A] public body must disclose all public records that are not specifically exempt under
the act.” Id. (citation and quotation marks omitted). “The FOIA provides that a person has a right
to inspect, copy, or receive public records upon providing a written request to the FOIA
coordinator of the public body.” Id. (citation and quotation marks omitted). “[O]nce a request
under the FOIA has been made, a public body has a duty to provide access to the records sought
or to release copies of those records unless the records are exempted from disclosure.” Id. (citation
and quotation marks omitted).
The following are the relevant provisions of the FOIA regarding the requirements for a
written request. MCL 15.233(1)1 provided that “[e]xcept as expressly provided in [MCL 15.243],
upon providing a public body’s FOIA coordinator with a written request that describes a public
record sufficiently to enable the public body to find the public record, a person has a right to
inspect, copy, or receive copies of the requested public record of the public body.” Similarly,
under MCL 15.235, “[e]xcept as provided in [MCL 15.233], a person desiring to inspect or receive
a copy of a public record shall make a written request for the public record to the FOIA coordinator
of a public body.” A “written request” is defined as follows: “a writing that asks for information,
1
MCL 15.233(1) was amended on December 28, 2018. The current provision now requires
additional material to be provided in the request. However, we have applied the versions of the
FOIA in effect at the time of the December 6, 2018 request and Dietrich’s December 7, 2018
response herein. “[S]tatutes and amended statutes are to be applied prospectively unless the
Legislature manifests an intent to the contrary.” Davis v State Employees’ Retirement Bd, 272
Mich. App. 151, 155; 725 NW2d 56 (2006). “The Legislature’s expression of an intent to have a
statute apply retroactively must be clear, direct, and unequivocal as appears from the context of
the statute itself.” Id. at 155-156.
-3-
and includes a writing transmitted by facsimile, electronic mail, or other electronic means.” MCL
15.232(m). A “writing” is defined as follows:
“Writing” means handwriting, typewriting, printing, photostating, photographing,
photocopying, and every other means of recording, and includes letters, words,
pictures, sounds, or symbols, or combinations thereof, and papers, maps, magnetic
or paper tapes, photographic films or prints, microfilm, microfiche, magnetic or
punched cards, discs, drums, hard drives, solid state storage components, or other
means of recording or retaining meaningful content.
Upon receipt of a written request, a public body must do the following in accordance with MCL
15.235(2) and (5):
(2) Unless otherwise agreed to in writing by the person making the request, a public
body shall respond to a request for a public record within 5 business days after the
public body receives the request by doing 1 of the following:
(a) Granting the request.
(b) Issuing a written notice to the requesting person denying the request.
(c) Granting the request in part and issuing a written notice to the requesting person
denying the request in part.
(d) Issuing a notice extending for not more than 10 business days the period during
which the public body shall respond to the request. A public body shall not issue
more than 1 notice of extension for a particular request.
* * *
(5) A written notice denying a request for a public record in whole or in part is a
public body’s final determination to deny the request or portion of that request. The
written notice must contain:
(a) An explanation of the basis under this act or other statute for the determination
that the public record, or portion of that public record, is exempt from disclosure,
if that is the reason for denying all or a portion of the request.
(b) A certificate that the public record does not exist under the name given by the
requester or by another name reasonably known to the public body, if that is the
reason for denying the request or a portion of the request.
(c) A description of a public record or information on a public record that is
separated or deleted pursuant to [MCL 15.244], if a separation or deletion is made.
(d) A full explanation of the requesting person’s right to do either of the following:
-4-
(i) Submit to the head of the public body a written appeal that specifically states the
word “appeal” and identifies the reason or reasons for reversal of the disclosure
denial.
(ii) Seek judicial review of the denial under section 10.
(e) Notice of the right to receive attorneys’ fees and damages as provided in section
10 if, after judicial review, the court determines that the public body has not
complied with this section and orders disclosure of all or a portion of a public
record.
On December 6, 2018, Paterson emailed Dietrich requesting the following:
On behalf of my client, Robert Davis, in accordance with Mich.Const.1963, art 9,
sec., 23, I am respectfully requesting that the following financial documents be
made available immediately for public inspection and copying:
1. Copies of any and all monetary payments, including checks, invoices, cancelled
checks, check registers, issued to Dr. Sonia Hassan by the City of Detroit or any of
its departments from January 2015 to the present.
2. Copies of any and all contacts [sic] and/or employment agreements entered into
by and between any employee, agent or representative of the City of Detroit and
Dr. Sonia Hassan from January 2015 to the present.
3. Copies of any and all contracts the City of Detroit entered into or have with Bill
Nowling from January 2015 to the present.
4. Copies of any and all monetary payments, including copies of checks, the City
of Detroit has made to Bill Nowling from January 2015 to the present.
5. A copy of any and all gifts, donations, grants, and/or monetary payments the City
of Detroit has made to the nonprofit corporation Mark Your Date Detroit from
January 2015 to the present.
6. A copy of any and all gifts, donations, grants, and/or monetary payments the City
of Detroit has made to the nonprofit corporation SisterFriends Detroit from January
2015 to the present.
Please be advised that this request is made in accordance with Mich.Const.1963,
art 9, sec. 23 and not the FOIA. My client’s November 14, 2018 FOIA request that
was previously mailed is separate and distinct from this request.
My client desires to publicly inspect the aforementioned financial documents on or
before 4:30pm on Friday, December 7, 2018. I look forward to your response.
Plaintiff contends that, despite the language stating that this request was not a FOIA
request, the request fulfilled the statutory requirements of a written request under the FOIA.
-5-
Plaintiff also argues that, despite Dietrich’s reply email failing to conform to all of the requirements
set forth under MCL 15.235(5), Dietrich’s response nonetheless constituted a written response
under the FOIA. Thus, plaintiff contends that he was entitled to declaratory relief in regard to
Counts 1 and 2 of his amended complaint because the request and response constituted a “written
request” and a “written response,” respectively, under the FOIA. Accordingly, plaintiff argues
that the trial court erred in granting summary disposition for defendant on Counts 1 and 2. In
addition, plaintiff argues that, because the request and response complied with the FOIA, the court
erred in granting summary disposition for defendant in regard to Count 3 of plaintiff’s amended
complaint because plaintiff created a genuine issue of material fact as to whether the requested
documents exist. Counts 1 through 3 of plaintiff’s amended complaint all arose under the FOIA.
Thus, whether defendant had any duty to respond to the request in accordance with the FOIA or
to disclose the documents in accordance with the FOIA, the subject of Counts 2 and 3, is dependent
on the threshold question of whether plaintiff submitted a “written request” under the FOIA,
thereby triggering defendant’s obligations under the FOIA.
The December 6, 2018 request fulfilled the basic requirements for a “written request” as
set forth by MCL 15.233(1). Paterson sent the request to Dietrich, the FOIA coordinator, in
accordance with MCL 15.233(1), and requested information in a typewritten letter sent by
electronic mail in accordance with MCL 15.232(l) and (m). However, the issue is whether
plaintiff’s December 6, 2018 request, which explicitly stated that it was made in accordance with
article 9, § 23, of Michigan’s 1963 Constitution and not the FOIA, may constitute a properly
submitted request under the FOIA.
“The primary goal of statutory interpretation is to give effect to the intent of the
Legislature.” Zoo Yang v Everest Nat’l Ins Co, ___ Mich App ___, ___; ___ NW2d ___ (2019)
(Docket No 344987); slip op at 3. “To do so, we interpret the words, phrases, and clauses in a
statute according to their ordinary meaning.” Id. at ___; slip op at 3. “However, this Court must
construe the FOIA as a whole, harmonizing its provisions.” Arabo, 310 Mich. App. at 386 (citation
and quotation marks omitted).
Despite the fact that plaintiff’s request fulfilled the basic requirements of a “written
request,” a request made to the FOIA coordinator must be a request made under the FOIA and not
under a separate and distinct law. “The FOIA sets forth specific requirements that must be
followed in filing and responding to information requests.” Thomas v New Baltimore, 254 Mich
App 196, 201; 657 NW2d 530 (2002). “[O]nce a request under the FOIA has been made, a public
body has a duty to provide access to the records sought or to release copies of those records unless
the records are exempted from disclosure.” Arabo, 310 Mich. App. at 280 (citation and quotation
marks omitted; emphasis added). Thus, a public body’s duty to respond to a request within five
days and to provide a final determination is triggered upon receipt of a request made under the
FOIA. “[P]ublic bodies and trial courts can only make decisions on FOIA matters on the basis of
the information that is before them at the time, and it is not the function of appellate courts to
second-guess those decisions on the basis of information that later becomes available.” State News
v Mich State Univ, 481 Mich. 692, 703; 753 NW2d 20 (2008). Because duties are imposed on a
public body upon receipt of a FOIA request, it would retroactively impose duties on a public body
to allow a request made under a different law to later constitute a request made under the FOIA.
This is because, on the basis of the explicit language in the request, the public body would not
have been prompted to respond in accordance with the requirements of the FOIA. For example,
-6-
in this case, plaintiff argues that defendant had a duty under the FOIA to disclose the documents
requested on December 6, 2018. Defendant never received a request made under the FOIA, and
therefore, defendant had no duty to respond in accordance with the FOIA. In addition, a request
made under the FOIA is subject to the FOIA standards for disclosure of documents. Therefore, a
person would effectively circumvent the laws and procedures of the FOIA by demanding that the
documents be disclosed without the documents ever having been subject to the disclosure
requirements.
Here, Paterson emailed Dietrich on December 5, 2018, asserting that Dietrich had failed to
respond to plaintiff’s November 14, 2018 FOIA request. Dietrich replied the same day, explaining
to Paterson that he had not received the November 14, 2018 request. Dietrich also told Paterson
to forward the November 14, 2018 FOIA request and Dietrich would process it. Instead of
forwarding the FOIA request, Paterson sent another email on December 6, 2018, expressly
requesting the documents under article 9, § 23, of Michigan’s 1963 Constitution and not the FOIA.
Paterson stated twice in his email that he was requesting the documents under the Michigan
Constitution. Moreover, in plaintiff’s first complaint, plaintiff did not contend that the December
6, 2018 request constituted a FOIA request, but rather, plaintiff maintained that the December 6,
2018 request was made under article 9, § 23, of Michigan’s 1963 Constitution, and defendant’s
duty to disclose the documents arose from an obligation under article 9, § 23, of Michigan’s 1963
Constitution. It was not until plaintiff filed his amended complaint, five weeks after Paterson sent
the December 6, 2018 request, that plaintiff asserted that Paterson had erroneously stated that the
request was not made under the FOIA, but claimed that, despite the erroneous statement, the
request nonetheless constituted a “written request” under the FOIA.
As an initial matter, “generally, an attorney’s negligence is attributable to that attorney’s
client[.]” Amco Builders & Developers, Inc v Team Ace Joint Venture, 469 Mich. 90, 96; 666
NW2d 623 (2003). Moreover, the evidence indicates that plaintiff, through Paterson, intended not
to request documents under the FOIA, but rather, under article 9, § 23, of Michigan’s 1963
Constitution as illustrated by the express language used in the December 6, 2018 email and
plaintiff’s continued contention in the original complaint that defendant had a duty to disclose the
documents under article 9, § 23, of Michigan’s 1963 Constitution. Moreover, Paterson asked for
the documents to be disclosed within 24 hours which is not in accordance with the FOIA
requirements. Even if Paterson’s statement was made in error, the December 6, 2018 request made
no indication that it was a request under the FOIA. The request expressly stated that it was made
under article 9, § 23, of Michigan’s 1963 Constitution, not the FOIA, and that it was a separate
and distinct request from plaintiff’s prior FOIA request. Because there was no indication that the
request was made under the FOIA, defendant had no obligation to respond to the request in a
manner consistent with the FOIA requirements.
Therefore, the trial court did not err in declining to hold that the December 6, 2018 request
and Dietrich’s December 7, 2018 response constituted a written request and response, respectively,
under the FOIA. Accordingly, the trial court did not err in granting defendant’s motion for
summary disposition and denying plaintiff’s request for summary disposition in regard to Counts
1 and 2.
Moreover, a determination that plaintiff failed to submit a FOIA request is dispositive as
to whether the trial court erred in granting summary disposition for defendant on Count 3. Because
-7-
defendant had no duty to respond to the request in accordance with the FOIA, the court did not err
in granting summary disposition in regard to Count 3 of plaintiff’s amended complaint. In Count
3 of plaintiff’s amended complaint, plaintiff requested that the court declare that the requested
documents exist and compel defendant to immediately disclose the documents “to Plaintiff in
Accordance with FOIA.” Despite the fact that plaintiff submitted his own affidavit in the lower
court to support that the requested documents did in fact exist, defendant had no duty to disclose
the documents in accordance with the FOIA. Thus, plaintiff could not maintain Count 3 brought
under the FOIA, and it was irrelevant whether plaintiff presented evidence that the documents
exist.
In light of our conclusion regarding plaintiff’s FOIA claims, it is not necessary to address
defendant’s alternate grounds for affirmance—whether plaintiff lacked standing to bring claims
under the FOIA and whether plaintiff’s amended complaint was defective.
B. ARTICLE 9, § 23, OF MICHIGAN’S 1963 CONSTITUTION
Plaintiff argues that the trial court erred when it denied plaintiff’s request for summary
disposition in regard to Count 4 of plaintiff’s amended complaint because defendant was required
to disclose the requested documents in accordance with article 9, § 23, of Michigan’s 1963
Constitution. We disagree.
Article 9, § 23, of Michigan’s 1963 Constitution provides: “All financial records,
accountings, audit reports and other reports of public moneys shall be public records and open to
inspection. A statement of all revenues and expenditures of public moneys shall be published and
distributed annually, as provided by law.” The documents plaintiff requested are outside the scope
of article 9, § 23, of Michigan’s 1963 Constitution. This Court interpreted article 9, § 23, of
Michigan’s 1963 Constitution in Grayson v Mich State Bd of Accountancy, 27 Mich. App. 26, 34-
35; 183 NW2d 424 (1970), stating:
The manifest purpose of article 9, § 23 is to allow the public to keep their finger on
the pulse of government spending. The most expeditious way of so doing is to give
the public access to summaries, balance sheets, and other such compilations which
map out and correlate a myriad of financial transactions into a meaningful account.
It strains one’s credulity to think that the framers of the Constitution meant to allow
the public to inspect every receipt, every application for licensure and every writing
evidencing a receipt or expenditure. It is totally unnecessary to give such authority
to the public to achieve the purpose aforementioned and such authority could easily
serve as a tool to harass governmental agencies by unreasonable demands for great
volumes of individual documents. We hold that the public right to information
given by article 9, § 23 is best promoted, and the smooth functioning of the
government best protected, by construing the words “financial records” to require
more than a receipt or document[.]
Two sets of documents requested by plaintiff—“Copies of any and all contacts [sic] and/or
employment agreements entered into by and between any employee, agent or representative of the
City of Detroit and Dr. Sonia Hassan from January 2015 to the present” and “Copies of any and
all contracts the City of Detroit entered into or have with Bill Nowling from January 2015 to the
-8-
present”—clearly do not constitute “financial records, accountings, audit reports and other reports
of public moneys.” Thus, plaintiff is not entitled to those documents under article 9, § 23, of
Michigan’s 1963 Constitution.
The other documents requested by plaintiff—(1) copies of any and all monetary payments,
checks, invoices, cancelled checks, check registers, issued to Dr. Sonia Hassan by defendant or
any of its departments from January 2015 to December 2018 (2) copies of any and all monetary
payments defendant made to Bill Nowling from January 2015 to December 2018, and (3) copies
of any and all gifts, donations, and or monetary payments from defendant to two nonprofit
organizations from January 2015 to December 2018—essentially amounted to a request for every
expenditure by defendant to Nowling, Dr. Hassan, and the two nonprofit organizations over a
nearly four-year period. Plaintiff is not entitled to these documents under article 9 § 23, of
Michigan’s 1963 Constitution as they do not constitute “summaries, balance sheets, and other such
compilations.” Furthermore, plaintiff’s extensive requests appear to be the exact kind the Grayson
Court aimed to prevent so as not to allow article 9, § 23, of Michigan’s 1963 Constitution to be
used as a “tool to harass governmental agencies by unreasonable demands for great volumes of
individual documents.” Grayson, 27 Mich. App. at 35.
Thus, defendant had no duty to disclose the requested documents under article 9, § 23, of
Michigan’s 1963 Constitution. Accordingly, the trial court did not err in granting defendant’s
motion for summary disposition in regard to Count 4 of plaintiff’s amended complaint.
In light of our conclusion regarding plaintiff’s claim brought under article 9, § 23, of
Michigan’s 1963 Constitution, it is unnecessary for us to address defendant’s alternate ground for
affirmance—whether plaintiff had a private right of action under article 9, § 23, of Michigan’s
1963 Constitution.
II. MOTION TO COMPEL THE DEPOSITION OF A NONPARTY
Plaintiff argues that the trial court erred when it denied plaintiff’s motion to compel the
deposition, or in the alternative for leave to take the deposition, of Dr. Hassan. We disagree.
“This Court reviews a trial court’s discovery orders, such as an order to compel, for an
abuse of discretion.” PCS4LESS, LLC v Stockton, 291 Mich. App. 672, 676; 806 NW2d 353 (2011).
“An abuse of discretion occurs when the trial court chooses an outcome falling outside a range of
principled outcomes.” Id. at 676-677.
“The purpose of discovery is to simplify and clarify the contested issues, which is
necessarily accomplished by the open discovery of all relevant facts and circumstances related to
the controversy.” Hamed v Wayne Co, 271 Mich. App. 106, 109; 719 NW2d 612 (2006). “While
Michigan is strongly committed to open and far-reaching discovery, a trial court must also protect
the interests of the party opposing discovery so as not to subject that party to excessive, abusive,
or irrelevant discovery requests.” Planet Bingo, LLC v VKGS, LLC, 319 Mich. App. 308, 327; 900
NW2d 680 (2017). A court may limit discovery “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” MCR 2.302(C).
-9-
The trial court did not abuse its discretion when it denied plaintiff’s motion to compel the
deposition of, or in the alternative for leave to take the deposition of, Dr. Hassan pending the
court’s determination on defendant’s motion for summary disposition. Plaintiff requested to take
the deposition of Dr. Hassan because plaintiff believed that Dr. Hassan would have firsthand
knowledge that the requested documents exist and would reveal such in her deposition. However,
at the time the court denied plaintiff’s motion to compel the deposition of Dr. Hassan and stayed
discovery, defendant had filed its renewed motion for summary disposition challenging the legal
sufficiency of plaintiff’s amended claims on the basis that plaintiff never submitted a FOIA
request, and therefore, defendant had no legal duty to disclose the requested documents under the
FOIA. Moreover, defendant contended that it had no legal duty to disclose the requested
documents under article 9, § 23, of Michigan’s 1963 Constitution. Thus, the threshold questions
before the court were whether plaintiff had properly requested the documents under the FOIA, and
whether defendant had any duty to disclose the documents. As the court needed to address these
threshold questions before the court could address whether the documents existed, the trial court
did not abuse its discretion in denying plaintiff’s motion to compel, or motion for leave to take,
the deposition of Dr. Hassan.
III. SANCTIONS
Plaintiff argues that the trial court clearly erred in imposing sanctions against him. We
disagree.
“This Court reviews a trial court’s ruling on a motion for costs and attorney fees for an
abuse of discretion.” Keinz v Keinz, 290 Mich. App. 137, 141; 799 NW2d 576 (2010). “A trial
court’s findings with regard to whether a claim or defense was frivolous, and whether sanctions
may be imposed, will not be disturbed unless it is clearly erroneous.” Meisner Law Group PC v
Weston Downs Condo Ass’n, 321 Mich. App. 702, 730; 909 NW2d 890 (2017) (citation and
quotation marks omitted). “A decision is clearly erroneous where, although there is evidence to
support it, the reviewing court is left with a definite and firm conviction that a mistake has been
made.” Id. (citation and quotation marks omitted).
MCL 600.2591(1) requires a court to sanction an attorney or party that files a frivolous
action or defense. MCL 600.2591(1); Meisner Law Group, 321 Mich. App. at 731. MCL
600.2591(3)(a) defines “frivolous” as follows:
(i) The party’s primary purpose in initiating the action or asserting the defense was
to harass, embarrass, or injure the prevailing party.
(ii) The party had no reasonable basis to believe that the facts underlying that
party’s legal position were in fact true.
(iii) The party’s legal position was devoid of arguable legal merit.
The trial court did not abuse its discretion in awarding sanctions to defendant. The trial
court concluded that plaintiff’s primary purpose in initiating this case was to harass defendant. In
support of this conclusion, the court found that, upon review of the facts and procedural history of
this case, plaintiff’s conduct resulted in “a waste of time and resources of the Court and
-10-
[defendant]” and the claims in this lawsuit “could have been avoided altogether if Paterson had
simply emailed Dietrich a copy of the alleged November 14, 2018 FOIA request and indicated that
his request in the December 6, 2018 email was made under FOIA.” The facts of this case support
the trial court’s conclusion. Plaintiff contends that he submitted a written FOIA request via first
class mail to Dietrich on November 14, 2018, but when Dietrich explained to Paterson on
December 5, 2018, that he had not received the FOIA request but Paterson could email it to
Dietrich, Paterson’s response was not to send the November 14, 2018 FOIA request or to even
submit a new FOIA request. Rather, Paterson requested that the documents be produced within
24 hours, not in accordance with the FOIA, but with article 9, § 23, of Michigan’s 1963
Constitution. Plaintiff then filed an amended complaint requesting the court declare the exact
opposite—that the documents were requested under the FOIA.
Plaintiff also argues on appeal that the trial court found that plaintiff’s claims were
frivolous and awarded sanctions for defendant because the trial court was “attempting to
intimidate” plaintiff because of his personal relationship with Mayor Duggan. During the hearing
on plaintiff’s motion to compel the deposition of Dr. Hassan, the trial judge disclosed to the parties,
prior to any arguments, that he had worked as general counsel for Wayne County, and therefore,
at one point in time, Mayor Duggan had been his boss. The judge also disclosed that plaintiff had
been his son’s coach and mentor in the past. When asked by the judge whether the parties would
like to adjourn the matter as a result of his disclosures, Paterson stated that “[plaintiff] believes
you may proceed on this perfectly good basis.” Thus, plaintiff waived any claim that the judge
was biased. “A waiver consists of the intentional relinquishment or abandonment of a known
right.” Patel v Patel, 324 Mich. App. 631, 634; 922 NW2d 647 (2018). “[A] party who waives a
right is precluded from seeking appellate review based on a denial of that right because waiver
eliminates any error.” Braverman v Granger, 303 Mich. App. 587, 608; 844 NW2d 485 (2014).
Moreover, there is no indication on the record that the judge was in any way biased because of his
relationship with Mayor Duggan or that he was attempting to intimidate plaintiff by imposing
sanctions.
Affirmed.
/s/ Jane M. Beckering
/s/ David H. Sawyer
/s/ Michael F. Gadola
-11-