Charter Township of Royal Oak v. Janice Brinkley

STATE OF MICHIGAN

COURT OF APPEALS

CHARTER TOWNSHIP OF ROYAL OAK, UNPUBLISHED

May 18, 2017

Plaintiff-Appellee,

v No. 331317

Oakland Circuit Court

JANICE BRINKLEY, LC No. 2013-136281-AW

Defendant-Appellant,

and

CHARTER TOWNSHIP OF ROYAL OAK

CLERK,

Defendant.

Before: RIORDAN, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.

PER CURIAM.

Defendant Janice Brinkley, the former Royal Oak Township Clerk, appeals as of right the

trial court’s order denying her motion for costs and attorney fees under MCR 2.114(D) and (E).

Because we conclude that the trial court’s findings were not clearly erroneous, we affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This matter is before this Court following remand to the trial court by a prior panel.

Defendant originally sought costs and attorney fees following an entry of summary disposition in

her favor. Defendant’s motion contended that plaintiff’s complaint was frivolous and that certain

identified documents were signed in bad faith. The trial court ruled on the motion but only with

regard to whether the complaint was frivolous. On appeal to this Court, the panel affirmed the

trial court’s order with regard to whether the complaint was frivolous, but it remanded for the

trial court to address “the fact-specific inquiry concerning whether the identified documents were

signed in bad faith.” Charter Twp of Royal Oak v Brinkley, unpublished opinion per curiam of

the Court of Appeals, issued December 3, 2015 (Docket No. 324197), p 3 (Brinkley I). The

instant case concerns the trial court’s denial of defendant’s motion on remand.

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II. ANALYSIS

A. STANDARD OF REVIEW

This Court reviews the trial court’s factual findings on a motion for sanctions for clear

error. Kaeb v Kaeb, 309 Mich App 556, 564; 873 NW2d 319 (2015); Edge v Edge, 299 Mich

App 121, 127; 829 NW2d 276 (2012). “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.” Kitchen v Kitchen, 465 Mich 654, 661-662; 641 NW2d 245 (2002).

B. MCR 2.114

Defendant argues that she was entitled to sanctions under MCR 2.114(D) and (E). MCR

2.114(D) provides that a party’s or attorney’s signature on an affidavit, pleading, motion, or

other document certifies:

(1) he or she has read the document;

(2) to the best of his or her knowledge, information, and belief formed after

reasonable inquiry, the document is well grounded in fact and is warranted by

existing law or a good-faith argument for the extension, modification, or reversal

of existing law; and

(3) the document is not interposed for any improper purpose, such as to harass or

to cause unnecessary delay or needless increase in the cost of litigation.

MCR 2.114 imposes “an affirmative duty to conduct a reasonable inquiry into the factual and

legal viability” of documents before they are signed. LaRose Market, Inc v Sylvan Ctr, Inc, 209

Mich App 201, 210; 530 NW2d 505 (1995). “The reasonableness of the inquiry is determined

by an objective standard and depends on the particular facts and circumstances of the case.” Id.

In this case, defendant’s allegations implicate MCR 2.114(D)(2) because, although

defendant argues that certain identified documents were signed in “bad faith,” the crux of her

allegations is that those documents were not well grounded in fact and/or were not warranted by

existing law. “The filing of a signed document that is not well grounded in fact and law subjects

the filer to sanctions pursuant to MCR 2.114(E).” Guerrero v Smith, 280 Mich App 647, 678;

761 NW2d 723 (2008). The imposition of sanctions for a violation of MCR 2.114(D) is

mandatory. Kaeb, 309 Mich App at 565.

This case originally arose out of plaintiff’s complaint alleging that defendant, in her role

as township clerk, failed to perform a number of her duties and/or willfully ignored some of her

duties. Defendant’s claims implicate a number of documents filed by plaintiff, including: (1)

claims related to statements made in Township Supervisor Donna Squalls’s September 7, 2013

affidavit attached to the complaint; (2) claims related to plaintiff’s complaint; (3) claims related

to plaintiff’s April 16, 2014 Motion to Show Cause; and (4) claims related to plaintiff’s response

to defendant’s motion for summary disposition. In addition, defendant argues for the first time

on appeal that plaintiff should have been sanctioned for failing to dismiss the action.

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C. CLAIMS PERTAINING TO SQUALLS’S AFFIDAVIT

1. EVIP FUNDING AND REPORTS TO TREASURY

Defendant first argues that Squalls’s affidavit was signed in bad faith because of false

allegations contained therein concerning an application that defendant made to the Department of

Treasury for $50,000 in Economic Vitality Incentive Program (EVIP) funding in February 2013.

Defendant identified ¶ ¶ 3-4 of the affidavit as the allegedly false statements. Those paragraphs

provide:

3. The Michigan Department of Treasury requires monthly financial reports to be

submitted and failure to do so accurately and timely results in loss of revenue

funds and causes the Township to face emergency financial management.

4. As part of her statutory duties, the Township Clerk was to properly submit

these monthly reports in accordance with the State EVIP guidelines and has to

date failed to do so.

Defendant argues that Squalls falsely asserted that defendant’s late filing of financial reports

with the Department of Treasury was the cause of plaintiff’s loss of $50,000 in EVIP funding.

According to defendant, the EVIP application was due on February 1, 2013, and Squalls knew

that the Department of Treasury did not require the submission of monthly reports until April

2013. Hence, according to defendant, any assertion by Squalls that the failure to submit monthly

reports to the Department of Treasury caused plaintiff to lose EVIP funding was false.

We decline to find clear error on this claim. Defendant admitted that she failed to timely

attach certain unidentified documents to the EVIP application at issue, thereby resulting in the

loss of $50,000 in funds. At most, defendant is arguing that plaintiff potentially misidentified the

documents she failed to submit in her application for EVIP funding. This does not demonstrate

clear error by the trial court.

2. SHREDDING PUBLIC DOCUMENTS

Next, defendant takes issue with Squalls’s statement in ¶ 7 of her affidavit that defendant

was “shredding public records without the knowledge of the Board.” According to defendant,

this statement was false because the Township Board knew, by way of a resolution it passed, that

defendant would be shredding documents. And defendant notes that Squalls admitted in her

deposition that she did not know whether the documents were required to be kept by law.

According to defendant, this admission shows that ¶ 7 was not well grounded in fact and was

made in bad faith.

We decline to find clear error on the record before us. Throughout the trial court

proceedings, defendant freely admitted that she shredded township documents. She only

disputed whether she was required by law to keep the documents. Squalls’s affidavit,

meanwhile, merely states that, instead of attending a township meeting, “it was discovered the

Township Clerk was at the Township shredding public records without the knowledge of the

Board.” Squalls did not allege that defendant shredded documents that were required to be kept.

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She merely asserted that defendant shredded documents without the knowledge of the Township

Board. In her deposition, Squalls testified that she knew defendant shredded township

documents, but she testified that she did not know the substance of the documents or whether

defendant shredded anything she should have kept pursuant to record retention policies. In other

words, Squalls testified that she knew defendant shredded documents, but Squalls, who was a

Board member, did not know what those documents were. In light of this testimony, we are not

left with a definite and firm conviction that the trial court made a mistake. Indeed, this testimony

supports the notion that defendant shredded at least some documents without the Board’s

knowledge.

3. ACCESS TO THE FUND BALANCE SOFTWARE PROGRAM

Next, defendant argues that Squalls made false assertions in her affidavit with regard to

the issue of “read access” and “write access” to the township’s “Fund Balance” software

program. Defendant argues that Squalls’s affidavit falsely claimed that defendant “failed to give

[Squalls] read and write access to all of Fund Balance contrary to her authority and a resolution

passed by the Township Board allowing such access.” However, Squalls’s affidavit does not

state that defendant acted contrary to the resolution. Rather, Squalls’s affidavit simply states that

defendant denied Squalls access and that the Township Board passed a resolution regarding

Fund Balance access. There does not appear to be any dispute that defendant blocked some

access to Fund Balance before the resolution was passed. Thus, the record before this Court does

not support the conclusion that the trial court clearly erred.

4. DIRECTIONS TO THE TOWNSHIP DEPUTY CLERK

Defendant next argues that Squalls falsely asserted in ¶ 10 of her affidavit that defendant

directed the deputy clerk not to act in her absence. Paragraph 10 of the affidavit provides that

“the Township Clerk’s deputy has been directed not to comply with her statutory duties to act in

the stead of the Township Clerk . . . .” Defendant cites an affidavit from a former deputy clerk,

Ida Reynolds, who averred that defendant never instructed her not to act. Citing Reynolds’s

affidavit, defendant argues that Squalls’s assertions to the contrary were false and that they were

made in bad faith. Defendant also argues that Squalls admitted she could not recall any instance

when the deputy clerk refused to act.

On the record before this Court, defendant cannot show clear error. When asked about

¶ 10 of her affidavit, Squalls testified at her deposition that:

There was one time—and I can’t recall what it was now—but [the deputy clerk]

said, “[defendant] told me not to do”—I can’t recall what it was, but [the deputy

clerk] did tell me to my face that [defendant] told her not to do something that I

asked her. I asked for information and “[defendant] told me not to give it to”—or

something.

Squalls also testified that she could not recall the specific subject matter of the refusal. Contrary

to defendant’s suggestions on appeal, Squalls did not testify in her deposition that she did not

know whether the averment was true; rather, she testified that she could not recall the subject of

the refusal to act. In sum, other than Reynolds’s denial, defendant has not presented any

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evidence suggesting that Squalls knew her averment in ¶ 10 was false. The conflicting accounts

of Squalls and Reynolds do not demonstrate a clearly erroneous factual finding by the trial court.

5. APPOINTMENT OF TRUSTEE AS ACTING CLERK

The final statement with which defendant takes issue from Squalls’s affidavit is the

averment in ¶ 11 in which Squalls stated that “unless Plaintiff is permitted to appoint a Trustee to

act as the Township Clerk in the interim, the Township will be unable to function and operate.”

Defendant argues that there is no evidence that she failed to perform her duties as clerk.

Moreover, she argues that there is no evidence that the deputy clerk refused to act; thus,

according to defendant, even if she failed to perform her duties as clerk, the township could still

function without the appointment of a trustee as an interim clerk.

The record before this Court does not demonstrate clear error. As it concerns defendant

and her refusal to take certain actions, the record reveals that defendant admittedly failed to sign

certain township resolutions that she deemed were not ready for implementation for one reason

or another. Squalls’s affidavit expressly mentioned defendant’s failure to sign resolutions as one

of the reasons why plaintiff requested the appointment of an interim clerk. Moreover, defendant

admittedly failed to attach documentation to an application for EVIP funding, and, as noted

above, Squalls testified that she had at least some reason to believe that defendant had instructed

the deputy clerk not to act.

D. CLAIMS PERTAINING TO PLAINTIFF’S COMPLAINT

According to defendant, plaintiff’s complaint was not well grounded in fact because

“[t]he record is clearly contrary” to certain allegations set forth in the complaint. Defendant lists

six allegations, without expressly citing the complaint, and concludes, in cursory fashion, that

plaintiff knew or should have known that the allegations were false. Given defendant’s cursory

treatment of her claims, we consider the claims to be abandoned. See Peterson Novelties, Inc v

City of Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003) (“An appellant’s failure to properly

address the merits of his assertion of error constitutes abandonment of the issue.”). Moreover, on

our review of the record, we are not left with a definite and firm conviction that the trial court’s

factual finding was mistaken.

E. CLAIMS PERTAINING TO PLAINTIFF’S APRIL 16, 2014 SHOW-CAUSE MOTION

Defendant next argues that plaintiff’s April 16, 2014 show-cause motion was signed in

bad faith because it advocated a position that was not warranted by existing law. This motion

concerned defendant’s alleged failure to call two special meetings that Squalls had requested.

Squalls requested the first special meeting with approximately 22 hours’ notice, rather than the

24 hours required by MCL 42.7. Squalls requested the second special meeting via text message,

which the trial court in this case found did not satisfy MCL 42.7’s requirement that such requests

be made “in writing.” According to defendant, had plaintiff’s attorney reviewed MCL 42.7

before filing the show-cause motion, he would have realized that the claims made therein were

not warranted by existing law.

As it concerns special meetings of a township board, MCL 42.7(2)-(3) provide:

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(2) A special meeting of the township board shall be called by the township clerk

pursuant to subsection (3) on the written request of the supervisor or of 2

members of the township board and on at least 24 hours’ written notice to each

member of the township board. The notice shall designate the time, place, and

purpose of the meeting and shall be served personally or left at the member’s

usual place of residence by the township clerk or someone designated by the

township clerk.

(3) The business that the board may perform shall be conducted at a public

meeting of the board held in compliance with the open meetings act, Act No. 267

of the Public Acts of 1976, being sections 15.261 to 15.275 of the Michigan

Compiled Laws. Public notice of the time, date, and place of the meeting shall be

given in the manner required by Act No. 267 of the Public Acts of 1976.

[Emphasis added.]

Defendant is correct that a township meeting “shall” be called on 24 hours’ notice to the

township board members, though the provision is silent on whether a member can waive the

requirement that advanced notice be given to him or her. That waiver may be permitted is

suggested by the fact that public notice of a special meeting under the open meetings act must be

posted only “at least 18 hours before the meeting.” MCL 15.265(4). Given this shorter

requirement for public notice, it is arguable that the 24-hour requirement could be waived, and

that a valid meeting could be held as long as the 18-hour public notice requirement of the open

meetings act was met. Here, the 22-hour notice given by Squalls fits within that timeframe.

That a legal position does not prevail does not mean that the argument was not warranted by

existing law.1 Sprenger v Bickle, 307 Mich App 411, 424; 861 NW2d 52 (2014).

As it concerns the special meeting that Squalls requested by text message, MCL 42.7(2)

provides that a meeting request must be “in writing,” without defining the phrase “in writing.”

Neither party has directed this Court’s attention to binding authority on the interpretation of the

phrase “in writing” as it is used in this statute. Thus, there could be an argument made that a text

message would qualify as written notice. In fact, the prior panel in this case, in addressing

arguments raised by plaintiff’s cross-appeal, expressly declined to resolve the question of

whether a text message constituted written notice under MCL 42.7(2). Brinkley I, unpub op at 7-

8. In doing so, the panel noted that there was a “lack of clarity concerning where emerging

technology such as text messages fits into existing statutory definitions concerning ‘written

requests’ or ‘writings.’ ” Id. The concern identified by the prior panel highlights that there is

arguable merit to the claim that a text message would satisfy the “in writing” requirement of

MCL 42.7(2). That the trial court denied plaintiff’s motion to hold defendant in contempt for

failing to call a meeting pursuant to a text message request does not mean that plaintiff’s motion

was not warranted by existing law. See Sprenger, 307 Mich App at 424.

1

Because the question of whether a member can waive the right to 24-hour advanced notice need

not be answered for proper resolution of this appeal, we will decline to address it further.

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F. CLAIM PERTAINING TO PLAINTIFF’S RESPONSE TO SUMMARY DISPOSITION

Defendant next argues that plaintiff’s assertion concerning defendant’s adherence to a

township resolution regarding mail protocol in its response to her motion for summary

disposition was made in bad faith. As context for this claim, trial counsel for plaintiff, who also

served as plaintiff’s general counsel, had previously provided an opinion to Squalls and other

board members in March 2013 regarding “the Township Clerk’s legal duties as they relate to the

receiving and opening of mail addressed to the Charter Township of Royal Oak and mail

addressed to individuals at the Township’s business address.” After reviewing pertinent

authorities, counsel opined that the township clerk was “legally authorized to accept and open all

mail addressed to the Charter Township of Royal Oak and any mail addressed to individuals at

the Township’s business address.” Shortly after receiving counsel’s letter, the Township Board

passed a resolution requiring defendant to refrain from opening mail addressed “to a specific

person or office other than the Township.” In an October 30, 2013 deposition, defendant

testified that she was aware of the resolution, but she nevertheless opened all mail she received

“because it’s my statutory duty.” She testified that she would open all mail that was delivered to

the township offices, regardless of whether it was addressed to another individual and regardless

of whether it was marked personal or confidential. She testified that she would not follow the

resolution regarding mail protocol.

As it concerns defendant’s instant claims, she argues that, given counsel’s opinion, as

well as MCL 41.65 and this Court’s decision in McKim v Green Oak Twp Bd, 158 Mich App

200; 404 NW2d 658 (1987), it “was bad faith” for plaintiff to allege that defendant breached her

duties by violating the township resolution that was “clearly contrary” to the March 2013 letter

from counsel.

In pertinent part, MCL 41.65 provides that “[t]he township clerk of each township shall

have custody of all the records, books, and papers of the township, when no other provision for

custody is made by law.” In McKim, 158 Mich App at 205, this Court held that the term

“papers” as used in that section includes mail delivered to the township. “Hence, it seems clear

that MCL 41.65 . . . bestows a township clerk with the responsibility to exercise control over all

township papers, including mail and bills, unless otherwise provided for by law.” Id. At issue in

McKim was whether a township could enact a resolution permitting the township secretary,

rather than the clerk, to receive all incoming mail. Id. at 201-202. This Court held that a

resolution bypassing the township clerk entirely deprived the clerk of his or her duty under MCL

41.65 to have “custody of all . . . papers of the township . . . .” Id. at 205.

Turning to the instant case, the trial court did not clearly err in finding that the accusation

made in plaintiff’s response regarding defendant’s lack of compliance with the mail protocol

ordinance was not made in bad faith. At the outset, regardless of any opinion given by the

township’s general counsel, the Township Board passed a resolution requiring defendant not to

open mail she received if it was addressed to someone else, and defendant openly defied that

resolution. As plaintiff argues, the township has an interest in seeing that resolutions passed by

its board are followed. Moreover, the law cited by defendant is not as clear as defendant

represents it to be. As it concerns the instant case, neither McKim nor MCL 41.65 expressly

gives a township clerk authority to open all mail that is delivered to the township. Rather, the

authorities give a clerk “custody” over the mail. It is not apparent that “custody” means a clerk

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can open mail addressed to anyone, regardless of the subject of the mail. Furthermore, there is

little caselaw interpreting MCL 41.65, and the decision in McKim could be considered

nonbinding because it was issued before November 1, 1990. See MCR 7.215(J)(1). Contrary to

defendant’s assertions, plaintiff’s position regarding mail protocol was at least arguably

warranted by existing law, and defendant fails to establish clear error.

G. CLAIM PERTAINING TO AN ALLEGED “FAILURE TO DISMISS”

For her final claim, defendant argues that plaintiff should be sanctioned “pursuant to

MCR 2.114 for failing to dismiss” when it knew it had no case against defendant. Defendant

failed to preserve this claim for appellate review because she did not raise it before the trial

court. See Hines v Volkswagen of America, Inc, 265 Mich App 432, 443; 695 NW2d 84 (2005).

We decline to address this issue raised for the first time on appeal. City of Fraser v Almeda

Univ, 314 Mich App 79, 104; 886 NW2d 730 (2016). Moreover, we have reviewed the claim

and found it to be without merit.

III. CONCLUSION

Defendant failed to show that the trial court’s factual findings were clearly erroneous.

Accordingly, we affirm the trial court’s order denying defendant’s motion for costs and attorney

fees.2

Affirmed.

/s/ Michael J. Riordan

/s/ Amy Ronayne Krause

/s/ Brock A. Swartzle

2

We note that, in passing, plaintiff appears to argue that defendant should be sanctioned for

filing a vexatious appeal. Given the cursory attention plaintiff gives to this matter, we find it to

be abandoned. See Peterson Novelties, 259 Mich App at 14. Moreover, because this cursory

request is made in plaintiff’s brief, rather than in a separate motion, “the request is ineffectual”

and should not be considered at this time. Fette v Peters Constr Co, 310 Mich App 535, 553;

871 NW2d 877 (2015).

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