Opinion
353097 354162
12-02-2021
STEPHEN EMSLEY, Plaintiff-Appellant, v. CHARTER TOWNSHIP OF LYON BOARD OF TRUSTEES, Defendant-Appellee. MR. SUNSHINE and STEPHEN EMSLEY, Plaintiffs-Appellants, v. CHARTER TOWNSHIP OF LYON BOARD OF TRUSTEES, LISA BLADES, PATRICIA CARCONE, MICHELE CASH, JOHN DOLAN, SEAN O'NEIL, CAROL ROSATI, KRISTOFER ENLOW, and JOHN HICKS, Defendants-Appellees.
UNPUBLISHED
Oakland Circuit Court LC No. 2020-179219-CZ
Before: Swartzle, P.J., and Cavanagh and Gadola, JJ.
PER CURIAM.
In Docket No. 353097, plaintiff Stephen Emsley appeals as of right the trial court's order granting summary disposition to defendant, the Charter Township of Lyon Board of Trustees (the Board), under MCR 2.116(C)(10). In Docket No. 354162, plaintiffs, Mr. Sunshine and Emsley, appeal as of right the order of the trial court granting defendants, the Board and its individual members, summary disposition under MCR 2.116(C)(7) on the basis of res judicata, collateral estoppel, and governmental immunity, and dismissing plaintiffs' claims against the Board's attorney, Carol Rosati, under MCR 2.116(C)(8). We affirm the challenged orders of the trial court in both appeals.
Plaintiffs' complaint describes Mr. Sunshine as "a citizens group organized to promote open meetings of Michigan Public Bodies."
I. FACTS
These consolidated cases involve challenges under the Open Meetings Act (OMA), MCL 15.261 et seq., to certain closed sessions conducted by the Board. In Docket No. 353097, Emsley initiated a lawsuit against the Board alleging that it repeatedly violated the requirements of the OMA when it went into closed session during public board meetings on April 5, 2010, August 7, 2017, November 6, 2017, December 4, 2017, January 2, 2018, February 5, 2018, June 4, 2018, September 4, 2018, and November 7, 2018. In each instance, the Board went into a closed session for the stated purpose of considering attorney-client privileged communications. In his amended complaint, Emsley alleged that on the specified meeting dates the Board failed to comply with the procedures for going into a closed session under the OMA and also used the closed sessions to consider public policy matters with the Board's attorney that should have been deliberated publicly.
The Board moved for summary disposition under MCR 2.116(C)(8) and (10), arguing that it fully complied with the OMA when it entered the closed sessions to discuss privileged communications with its counsel. The Board asserted that in compliance with § 8(h) of the OMA, MCL 15.268(h), on each date the Board announced that it was entering into a closed session to consider a written legal communication from its attorney, that contrary to Emsley's allegations it was not required to identify the privileged documents to be discussed before entering the closed sessions, and that there was no evidence that the Board exceeded the proper scope of any closed session. The Board supported its motion under MCR 2.116(C)(10) with the affidavit of Gary August, the township's special counsel, detailing the subjects covered during the closed sessions.
In response to the motion for summary disposition, Emsley argued in part that the Board again violated the OMA on August 5, 2019, a date not included in Emsley's complaint, by improperly entering into a closed session to discuss written communications from its attorney. Following a hearing, the trial court granted the Board's motion for summary disposition under MCR 2.116(C)(10), finding no genuine issue of material fact regarding the alleged violations of the OMA. The trial court determined that the Board had complied with the requirements of the OMA when going into the closed sessions, rejecting Emsley's arguments that the Board failed to satisfy the requirements of the OMA.
Emsley moved for reconsideration of the trial court's order granting the Board summary disposition under MCR 2.116(C)(10), and in response the Board submitted affidavits from Carol Rosati and Lisa Anderson, attorneys who participated in the closed sessions. After reviewing in camera the Board's meeting minutes, closed session minutes, and attorney-client communications for the relevant meetings including the August 5, 2019 meeting, the trial court denied the motion for reconsideration.
While Emsley's motion for reconsideration was pending before the trial court in Docket No. 353097, plaintiffs initiated a second lawsuit against the Board, the individual Board members, and the Board's attorney, Carol Rosati (Docket No. 354162). Plaintiffs alleged that the Board violated the OMA by meeting in closed session during a public meeting on August 5, 2019, to discuss a written communication from the Board's attorney. Plaintiffs alleged that the written attorney communication was used as a subterfuge to call a closed session to improperly discuss a potential lawsuit that was not yet pending. Plaintiffs alleged that the individual board members acted in concert to evade the requirements of the OMA, engaging in a civil conspiracy to violate the OMA. Plaintiffs also alleged that Rosati, as the township's attorney, violated the OMA as a public official and aided and abetted the conspiracy to violate the OMA.
The Board and its members moved for summary disposition in part under MCR 2.116(C)(7). The Board contended that plaintiffs' claims were barred by res judicata and collateral estoppel because the trial court previously decided the merits of any claims related to the August 5, 2019 meeting in Emsley's first lawsuit, and that the civil conspiracy claim was barred by governmental immunity because all defendants associated with the Board were acting within the scope of their legislative authority. Rosati moved for summary disposition under MCR 2.116(C)(6), (7), (8), and (10), asserting that she was not a public official, that there was no civil conspiracy because any underlying tort alleged against defendants was barred by governmental immunity, and that plaintiffs' claims were also barred by res judicata and collateral estoppel.
The trial court granted defendants' motions and dismissed plaintiffs' claims against the Board and the individual board members under MCR 2.116(C)(7), finding that plaintiffs' claims were precluded by res judicata and collateral estoppel. The trial court stated, in relevant part:
The Court has already decided, in a final judgment, that the Board did not violate the OMA when it met in closed session on August 5, 2019 to discuss a memorandum from its attorney. Although the August 5 meeting was not part of Emsley's first amended complaint in the second lawsuit, his subsequent briefs repeatedly referred to the August 5 meeting, that meeting was discussed at oral argument on the motion for reconsideration, and the Court expressly included that meeting in its opinion and order denying the motion for reconsideration.
The addition of Mr. Sunshine as a plaintiff does not change the outcome. The complaint alleges Mr. Sunshine is a "citizens group organized to promote meetings of Michigan Public Bodies," but there is no record of Mr. Sunshine being a registered corporate entity or assumed name. In any event, Mr. Sunshine would be in privity with Emsley, because they represent the same legal right and have a "substantial identity of interests." Baraga Co v State Tax Comm, 466 Mich. 264, 269-270; 645 N.W.2d 13 (2002).
The trial court also dismissed the civil conspiracy claim against the Board members, holding that plaintiffs had not pleaded facts in avoidance of governmental immunity. The trial court also granted Rosati's motion for summary disposition under MCR 2.116(C)(8), finding that Rosati was neither a public official nor a member of the Board. The trial court further found that absent an underlying actionable tort, the claim against Rosati for civil conspiracy was subject to dismissal. Plaintiffs now appeal.
II. DISCUSSION
A. STANDARD OF REVIEW
Plaintiffs raise a series of challenges to the trial court's orders granting defendants summary disposition in both consolidated cases. We review de novo a trial court's decision to grant or deny a motion for summary disposition. El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019). We also review de novo questions of statutory interpretation, Vermilya v Delta College Bd of Trustees, 325 Mich.App. 416, 418; 925 N.W.2d 897 (2018), and the application of a legal doctrine, such as res judicata. See Estes v Titus, 481 Mich. 573, 578-579; 751 N.W.2d 493 (2008).
In Docket No. 353097, the Board asserts that because the trial court's final order of October 15, 2020 is identified in Emsley's claim of appeal as the order appealed, the proper scope of this Court's review does not extend to Emsley's challenges related to the trial court's March 2, 2020 order denying reconsideration of the court's October 15, 2020 order. When a party properly claims an appeal from a final order, however, the party is permitted to raise on appeal issues related to other orders in the case. Bonner v Chicago Title Ins Co, 194 Mich.App. 462, 472; 487 N.W.2d 807 (1992). The scope of this Court's review therefore extends to issues raised regarding the trial court's March 2, 2020 order.
MCR 2.116(C)(7) provides for summary disposition on the basis of release, payment, prior judgment, or immunity granted by law. Clay v Doe, 311 Mich.App. 359, 362; 876 N.W.2d 248 (2015). When reviewing a trial court's decision on a motion for summary disposition under MCR 2.116(C)(7), we consider all documentary evidence in the light most favorable to the non-moving party, id., accepting the complaint as factually accurate unless specifically contradicted by affidavit or other documentation. Frank v Linkner, 500 Mich. 133, 140; 894 N.W.2d 574 (2017). If the facts are undisputed, and if reasonable minds could not differ regarding the legal effect of the facts, whether summary disposition is proper is a question of law for the Court. Estate of Miller v Angels' Place, Inc, 334 Mich.App. 325, 330; 964 N.W.2d 839 (2020).
A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the claim. El-Khalil, 504 Mich. at 159. When reviewing a grant or denial of summary disposition under MCR 2.116(C)(8), we consider the motion based upon the pleadings alone and accept all factual allegations as true. Id. at 160. Summary disposition under MCR 2.116(C)(8) is warranted when the claim is so unenforceable that no factual development could justify recovery. Id.
A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim. El-Khalil, 504 Mich. at 160. Summary disposition under MCR 2.116(C)(10) is warranted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. When reviewing a motion for summary disposition under MCR 2.116(C)(10) we consider the documentary evidence submitted by the parties in the light most favorable to the nonmoving party. Id. We will find that a genuine issue of material fact exists when the record leaves open a genuine issue upon which reasonable minds might disagree. Johnson v Vanderkooi, 502 Mich. 751, 761; 918 N.W.2d 785 (2018).
B. SCOPE OF CLOSED SESSION
Plaintiffs contend that the trial court erred by granting defendants summary disposition in the respective cases because the Board violated the OMA when going into closed session on the specified dates. Plaintiffs argue that a public body only may consult with its attorney in a closed session under MCL 15.268(e), and only regarding trial or settlement strategy in specific pending litigation when discussion in an open meeting would have a detrimental financial effect on the public body's position. Plaintiffs contend that the Board improperly relied upon MCL 15.268(h) to meet in closed session with their attorney to discuss matters other than pending litigation. We disagree that the trial court erred in granting defendants summary disposition.
The purpose of the OMA is "to promote governmental accountability by facilitating public access to official decision making and to provide a means through which the general public may better understand issues and decisions of public concern." Vermilya, 325 Mich.App. at 419 (quotation marks and citation omitted). "Under the OMA, public bodies must conduct their meetings, make all of their decisions, and conduct their deliberations (when a quorum is present) at meetings open to the public." Speicher v Columbia Twp Bd of Trustees, 497 Mich. 125, 134-135; 860 N.W.2d 51 (2014). Specifically, the OMA provides that "[a]ll meetings of a public body must be open to the public and must be held in a place available to the general public," MCL 15.263(1), that "[a]ll decisions of a public body must be made at a meeting open to the public," MCL 15.263(2), and that except as otherwise provided, "[a]ll deliberations of a public body constituting a quorum of its members must take place at a meeting open to the public." MCL 15.263(3). See Citizens for a Better Algonac Comm Sch v Algonac Comm Sch, 317 Mich.App. 171, 177; 894 N.W.2d 645 (2016).
The OMA, however, also provides exceptions to the general rule that all meetings of a public body must be open, thereby permitting a public body to meet in a closed session for certain purposes. MCL 15.268 provides, in pertinent part:
" 'Closed session' means a meeting or part of a meeting of a public body that is closed to the public." MCL 15.262(c).
A public body may meet in a closed session only for the following purposes:
* * *
(e) To consult with its attorney regarding trial or settlement strategy in connection with specific pending litigation, but only if an open meeting would have a detrimental financial effect on the litigating or settlement position of the public body.
(h) To consider material exempt from discussion or disclosure by state or federal statute.
The parties do not dispute that on the dates in question, the Board went into closed sessions during public meetings for the announced purpose of considering material subject to attorney-client privilege exempt from disclosure under Michigan's Freedom of Information Act (FOIA), MCL 15.231 et seq. Section 13 of the FOIA, MCL 15.243(1)(g), permits a public body to exempt from disclosure "[i]nformation or records subject to the attorney-client privilege." Plaintiffs argue, however, that although the OMA permits the Board to meet in a closed session to "consider" a written legal opinion under MCL 15.268(h), only MCL 15.268(e) permits a public body to enter into a closed session to "consult" with its attorney, and then only regarding specific pending litigation.
At oral argument, however, plaintiff retreated from this position, acknowledging that a public body may go into closed session under MCL 15.268(h) to discuss with its attorney legal advice in a written privileged attorney-client communication.
This Court has construed MCL 15.268(h) to encompass an attorney-client exemption under the OMA. Although a public body may not "evade the open meeting requirement of the OMA merely by involving a written opinion from an attorney in the substantive discussion of a matter of public policy for which no other exemption in the OMA would allow a closed meeting," MCL 15.268(h) permits discussion with counsel during a closed session, "limited to the meaning of any strictly legal advice presented in the written opinion." People v Whitney, 228 Mich.App. 230, 247; 578 N.W.2d 329 (1998).
Plaintiffs, no doubt, are familiar with this Court's opinion in Emsley v Lyon Charter Twp Bd of Trustees, unpublished per curiam opinion of the Court of Appeals, issued March 27, 2018 (Docket No. 337123), p 4, in which this Court explained that MCL 15.268(h) "has been construed to encompass an attorney-client exemption under the OMA, allowing discussion of a written legal opinion in a closed session limited to the meaning of any strictly legal advice presented in the written opinion."
In Booth Newspapers, Inc v Wyoming City Council, 168 Mich.App. 459, 467; 425 N.W.2d 695 (1988), this Court explained the scope of the exception in MCL 15.268(h), holding that under the clear language of that section, "[t]he only material which can be considered in closed sessions under this provision is that exempt from discussion or disclosure by a state or federal statute." The Court further explained that when the statute being relied upon for exemption is Michigan's FOIA, a public body is permitted to go into closed session under MCL 15.268(h) to consider written privileged communications from an attorney, though not oral opinions because the FOIA only protects public records. Booth Newspapers, 168 Mich.App. at 467-470. This Court explained:
We conclude that the attorney-client privilege which may be asserted regarding the consideration and discussion of a written legal opinion under § 8(h) is no broader or narrower than this common-law privilege. We, therefore, hold that
§ 8(h) of the OMA authorizes closed sessions to discuss matters which are exempt from disclosure or discussion by a statute (such as the FOIA), or which are reasonably related thereto. To effectuate the clear legislative intent in the OMA to promote openness and accountability, the scope of the discussion in closed session must legitimately relate to legal matters, and not bargaining, economics, or other tangential nonlegal matters. [Booth Newspapers, 168 Mich.App. at 468.]
In Docket No. 353097, Emsley argues that the Board exceeded the permissible scope of a closed session under MCL 15.268(h) by considering oral opinions from its attorneys. In Docket No. 354162, plaintiffs contend that even if the Board were permitted to go into a closed session to consider a privileged written document, during the closed session on August 5, 2019, the Board consulted its attorney regarding nonprivileged matters in violation of the OMA. The record, however, does not support plaintiffs' arguments. There is no evidence that the Board exceeded the scope of the exception in MCL 15.268(h) by considering or discussing matters beyond the legal matters addressed in the privileged written material that was the basis for the closed sessions. After reviewing the minutes of the closed sessions and the written communications, the trial court found that the Board did not exceed the scope of a closed session under MCL 15.268(h), that the minutes of the closed sessions confirmed that the sessions were limited to attorney-client privileged written communications, and plaintiffs did not provide documentation to the contrary. Similarly, our review of the record indicates that the trial court did not err by rejecting plaintiffs' contention that the Board violated the OMA by exceeding the permissible scope of the closed sessions under MCL 15.268(h).
C. ADDITIONAL EXEMPTION REQUIREMENTS
In Docket No. 353097, Emsley also contends that the trial court erred by granting the Board summary disposition because the Board entered into closed session on the dates in question under MCL 15.268(h) without fulfilling the procedural requirements of identifying the statutory provision under which it was acting and the materials to be considered in the closed session. The trial court rejected Emsley's argument, stating:
As Defendant points out, the meeting minutes for every meeting in the First Amended Complaint (with one exception - April 5, 2010), demonstrate that the Board complied with the OMA. The Board entered closed sessions for the permitted purpose of discussing a written communication protected by the attorney-client privilege. This is affirmed by the affidavit of Gary August, special counsel to the Township. As for the April 5, 2010 meeting, there is no proof that the Board entered closed session in violation of the OMA.
Plaintiff argues that the minutes must describe the privileged document, state the exemption justifying the closed session, and state the general nature or topic of the documents. But Plaintiff cites no authority for these requirements. The cases cited by Plaintiff are distinguishable.
[T]he FOIA exemption does not impose such a description requirement. Defendant was authorized to enter the closed sessions at issue for the purpose of discussing written attorney-client privileged communications, and the minutes reflect proper notification to the public of the actions that would be taken by the board in closed session.
Under the OMA "the purpose . . . for calling [a] closed session shall be entered into the minutes of the meeting" when a public body votes to go into closed session. MCL 15.267(1). Here, when calling for the closed sessions, the meeting minutes reflect that the Board announced that the purpose was "to discuss Attorney Client Privileged Communication in accordance with the Open Meetings Act, MCL 15.268(h)," thereby informing the public of the specific exemption in the OMA under which the Board was proceeding. Although the Board did not identify the relevant FOIA provision, it described the material to be considered as attorney-client privileged communications, which was sufficient to inform the public that the Board was relying on the FOIA exemption permitting nondisclosure of "[i]nformation or records subject to the attorney-client privilege." MCL 15.243(1)(g).
As support for the assertion that a public body also must describe the privileged documents and the general topic of the documents, Emsley relies upon Vermilya, 325 Mich.App. 416, and Herald Co, Inc v Tax Tribunal, 258 Mich.App. 78, 86-87; 669 N.W.2d 862 (2003), abrogated on other grounds by Speicher, 497 Mich. at 125. Those cases are distinct from this case and do not support Emsley's assertion. In Vermilya, the public body entered into a closed session relying upon MCL 15.268(e) regarding the exemption for specific pending litigation, and not MCL 15.268(h) for attorney client privileged documents. In Herald Co, the public body entered into a closed session to consider documents purportedly exempt from disclosure under the FOIA as trade secrets or commercial or financial information, and not as attorney client privileged documents. In sum, contrary to Emsley's assertions, nothing in the OMA or the FOIA obligated the Board to provide a more detailed explanation of the documents to be considered during the closed sessions. Accordingly, the trial court did not err by rejecting Emsley's arguments that the Board failed to adequately state its reasons for calling for closed sessions under MCL 15.268(h).
Emsley also contends in Docket No. 353097 that the trial court ignored his challenge to the closed session held on December 4, 2017. The public minutes of that meeting indicate that a motion was made to go into closed session to "discuss the pending lawsuit of Ten Milford vs. Lyon Township in accordance with the Open Meetings Act, MCL 15.268[(e)] because discussion in an open meeting would have a detrimental financial effect on the Township," and "to discuss two Attorney-Client Privileged Communications in accordance with the Open Meetings Act, MCL 15.268(h)." The Board's statement of its purpose for the closed session was sufficient to inform the public of the purposes of the closed session, consistent with the requirements of the OMA.
We also reject Emsley's contention in Docket No. 353097 that the trial court erred by granting the Board summary disposition because the Board failed to demonstrate that the written communications considered by the Board at the closed sessions were the product of an attorney-client relationship. The trial court rejected Emsley's argument, finding that there was no genuine issue of fact regarding the existence of the attorney-client relationship. In support of its motion for summary disposition, the Board submitted the affidavit of Attorney August, who averred that his law firm had been retained by the township to provide legal advice and services on an "as needed basis" as requested by the Township. The Board also submitted copies of the meeting minutes, which reflected that the Board went into closed session to consider attorney-client privileged communications. In further response to Emsley's challenge to the existence of an attorney-client relationship, the Board submitted the affidavit of Attorney Rosati, who averred that she was appointed to the position of lead township attorney on September 18, 2017, and thereafter provided legal services for the township. She further stated that she and August both provided legal opinions to the Board, and both attended meetings at which the Board considered those opinions. Thus, the Board submitted evidence supporting the existence of attorney-client relationships; conversely, Emsley did not present support for his belief that an attorney-client relationship did not exist. Accordingly, the trial court did not err by rejecting Emsley's contention that communications considered during the closed sessions were not the product of an attorney-client relationship.
D. REQUEST TO AMEND (DOCKET NO. 353097)
Emsley contends that while Docket No. 353097 was pending before the trial court, the Board again violated the OMA on August 5, 2019. Emsley asserts that at a public meeting held that day, the Board met in closed session to consult with its attorney regarding a potential lawsuit not yet filed involving its former lawyer, again violating the OMA. Emsley contends that the trial court abused its discretion by denying his request to amend his complaint to add allegations regarding this incident. We disagree.
We review the trial court's decision whether to allow a party to amend a complaint for an abuse of discretion. Kostadinovski v Harrington, 321 Mich.App. 736, 742-743; 909 N.W.2d 907 (2017). A trial court abuses its discretion when its decision is outside the range of reasonable and principled outcomes. Jawad A. Shah, MD, PC v State Farm Mut Auto Ins Co, 324 Mich.App. 182, 208; 920 N.W.2d 148 (2018). Leave to amend ordinarily should be denied only for particularized reasons, such as undue delay, bad faith or dilatory motive, repeated failures to cure by amendments previously allowed, or futility. Kostadinovski, 321 Mich.App. at 742-743; see also MCR 2.118(A)(2). Although a trial court's discretion in granting or denying a motion to amend a pleading is not boundless, PT Today, Inc v Comm'r of Fin & Ins Servs, 270 Mich.App. 110, 142; 715 N.W.2d 398 (2006), we defer to the trial court's judgment. Kostadinovski, 321 Mich.App. at 743.
In response to the Board's second motion for summary disposition in Docket No. 353097, Emsley stated that he wanted to amend his complaint to add the allegation that the Board violated the OMA by going into closed session at a meeting on August 5, 2019, to settle a matter "pre-suit" with its former legal counsel. Emsley argued that MCL 15.268(e) did not permit a closed session for this purpose because that subsection applies only to pending litigation, and that the Board used the stated purpose of considering an attorney-client privileged communication as a pretext to close the session under MCL 15.268(h).
The public minutes for the August 5, 2019 meeting reveal that the Board voted to enter into a closed session for two reasons. The first was "to discuss attorney client privilege [sic] communication in accordance with the Open Meetings Act, MCL 15.268(h)." The second was "to discuss pending litigation, Cambridge of Lyon LLC v Charter Township of Lyon, Oakland County Circuit Court Case No. 2018-168390-CZ in accordance with the Open Meeting Act, MCL 15.268(e), as an open meeting would have a detrimental financial effect on the litigation or settlement position of the Township." Following the closed session, the Board reconvened in an open meeting and approved a motion to authorize "a settlement agreement to settle a matter 'pre-suit' with former legal counsel."
The trial court denied Emsley's motion for reconsideration, holding in part that the August 5, 2019 closed session was properly closed pursuant to MCL 15.268(h), in compliance with the OMA. The trial court observed that the minutes of the August 5, 2019 closed session revealed that the Board discussed a written attorney-client communication during the closed session, which was exempt from disclosure under the FOIA. The trial court further observed that an affidavit from Attorney Rosati confirmed that the session was closed on that date for the Board to consider written attorney-client privileged communications, and thus the amendment requested by Emsley to add allegations related to the August 5, 2019 meeting would be futile. See Weymers v Khera, 454 Mich.App. 639, 658; 563 N.W.2d 647 (1997). Because the record supports the trial court's decision, the trial court did not abuse its discretion by declining to permit Emsley to amend his complaint to add allegations related to the August 5, 2019 meeting.
In Docket No. 353097, Emsley contends that the Board's second motion for summary disposition under MCR 2.116(C)(10) was deficient because the Board failed to identify sufficiently the matters it believed presented no genuine issue of material fact, contrary to MCR 2.116(G)(4), and that as a result, Emsley was not able to respond properly to the motion. We disagree.
When moving for summary disposition under MCR 2.116(C)(10), the moving party must "specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact." MCR 2.116(G)(4). "The level of specificity required under MCR 2.116(G)(4) is that which would place the nonmoving party on notice of the need to respond to the motion made under MCR 2.116(C)(10)." Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich.App. 362, 369; 775 N.W.2d 618 (2009).
In this case, in its motion for summary disposition the Board asserted that there was no genuine issue of material fact that the closed sessions were properly held pursuant to MCL 15.268(h). The Board asserted that contrary to Emsley's contentions, at each public meeting specified it announced in sufficient detail that the purpose for entering the closed session was to consider written attorney-client privileged information. The Board's motion further asserted that there was no evidence that it exceeded the scope of its authority in any closed session or that the attorney-client relationship was used as subterfuge for going into any closed sessions. The Board argued that its motion was supported by the minutes of the challenged meetings, as well as August's affidavit and other submitted evidence, and that it was entitled to summary disposition under MCR 2.116(C)(10). The Board's motion thus adequately apprised Emsley that the Board did not believe there were genuine issues of material fact regarding whether the challenged closed sessions were proper under MCL 15.268(h). Indeed, Emsley focused on these issues in his response to the motion, as did the trial court when reviewing the claims to determine if there were genuine issues of material fact. Accordingly, Emsley's contention that the Board's motion was procedurally deficient because it did not comply with MCR 2.116(G)(4) is without merit.
F. MCR 2.116(H)
In Docket No. 353097, Emsley contends that summary disposition was premature under MCR 2.116(H) because he was unable to obtain through discovery the facts necessary to support his arguments. Emsley argues that because the Board refused to answer his discovery requests, the trial court should have denied the Board's second motion for summary disposition under MCR 2.116(H)(2)(a) and ordered the Board to provide discovery under MCR 2.116(H)(2)(b). We disagree.
MCR 2.116(H) provides:
(1) A party may show by affidavit that the facts necessary to support the party's position cannot be presented because the facts are known only to persons whose affidavits the party cannot procure. The affidavit must
(a) name these persons and state why their testimony cannot be procured, and
(b) state the nature of the probable testimony of these persons and the reason for the party's belief that these persons would testify to those facts.
(2) When this kind of affidavit is filed, the court may enter an appropriate order, including an order
(a) denying the motion, or
(b) allowing additional time to permit the affidavit to be supported by further affidavits, or by depositions, answers to interrogatories, or other discovery.
In support of his response to the Board's second motion for summary disposition, Emsley submitted an affidavit from his attorney under MCR 2.116(H) asserting that it was not possible to obtain the allegedly privileged attorney-client records. In denying Emsley's motion for reconsideration, the trial court explained:
Finally, Plaintiff argues there are outstanding fact issues and he has been unable to conduct discovery about them because the facts are known only to people he cannot get affidavits from. For instance, whether the material discussed in the closed sessions is exempt from disclosure under FOIA where only one of the eleven sessions mentions the exemption in Section 13(1)(g); whether the Board requested attorney-client communications from the attorney; the subject matter of the five closed sessions not addressed in Gary August's affidavit; and the topic of the August 5, 2019 closed session where the Board came out of closed session and voted to "settle a matter pre-suit".
The Court finds that none of these are genuine issues of material fact that would preclude summary disposition. As noted above, all of the closed sessions were proper under the OMA, including the five sessions not addressed in Gary August's affidavit and the August 5, 2019 session, and the Board had an attorney-client relationship with the attorneys. Plaintiff has not shown the Court erred or that correction of the error requires a different result.
As the trial court explained, the information to which Emsley indicated he did not have access was not relevant to Emsley's legal arguments regarding whether the Board properly entered into closed sessions under MCL 15.268(h) on the specified dates. Moreover, to the extent that Emsley argued that the Board may have exceeded the scope of any discussions permitted in a closed session, the trial court remedied Emsley's lack of access by reviewing in camera the minutes of the closed sessions available and the privileged communications and found that these materials confirmed that the closed sessions were limited to considering written attorney-client communications. Accordingly, the trial court was not obligated to deny the Board's second motion for summary disposition under MCR 2.116(H)(2)(a) and permit further discovery.
G. CONSPIRACY
In Docket No. 354162, plaintiffs contend that the trial court erred by dismissing plaintiffs' conspiracy claim against the Board members and attorney Rosati. Plaintiffs alleged that defendants conspired to violate the OMA at the August 5, 2019 meeting, and that Rosati acted in concert with the individual board members to violate the OMA. The trial court held that governmental immunity shielded the Board members from liability for the alleged conspiracy claim, and held that Rosati was not liable because she was not a public official who could violate the OMA and also because there could be no conspiracy where there was no underlying violation of the OMA.
A civil conspiracy is not actionable by itself, but instead requires a separate, actionable tort as the basis of the conspiracy. Advocacy Org for Patients & Providers v Auto Club Ins Ass'n, 257 Mich.App. 365, 384; 670 N.W.2d 569 (2003). To establish a conspiracy, a plaintiff must demonstrate "a combination of two or more persons, by some concerted action, to accomplish a criminal or unlawful purpose, or to accomplish a lawful purpose by criminal or unlawful means." Swain v Morse, 332 Mich.App. 510, 530; 957 N.W.2d 396 (2020). If the plaintiff fails to establish an underlying tort, the claim for conspiracy fails. See Advocacy Org, 257 Mich.App. at 384. As discussed, the trial court did not err when it determined that the record demonstrated that the Board and its members followed proper procedures before going into closed session for permissible purposes under the OMA at the August 5, 2019 meeting. Because there was no underlying violation of the OMA, plaintiffs cannot prevail on their conspiracy claim against Rosati or the individual Board members. Accordingly, the trial court did not err by dismissing the conspiracy claims.
H. RES JUDICATA
In Docket No. 354162, plaintiffs contend that the trial court erred by dismissing their allegations that defendants violated the OMA by going into a closed session on August 5, 2019, on the basis that the claims are barred by res judicata. We disagree.
The trial court also dismissed the claims as barred by collateral estoppel and governmental immunity, and because Rosati was not a public official. Because we conclude that the trial court properly determined that the claims were barred by res judicata, we decline to reach the challenges to these additional bases for summary disposition.
Res judicata precludes relitigation of a claim predicated on the same underlying transaction litigated in a prior case. Duncan v Michigan, 300 Mich.App. 176, 194; 832 N.W.2d 761 (2013). The purpose of the doctrine of res judicata is to prevent multiple lawsuits litigating the same cause of action, King v Munro, 329 Mich.App. 594, 600; 944 N.W.2d 198 (2019), "by imposing a state of finality to litigation where the same parties have previously had a full and fair opportunity to adjudicate the claims." William Beaumont Hosp v Wass, 315 Mich.App. 392, 398; 889 N.W.2d 745 (2016) (quotation marks and citations omitted). Res judicata bars a subsequent action if "(1) the prior action was decided on the merits, (2) both actions involve the same parties or their privies, and (3) the matter in the second case was, or could have been, resolved in the first." Adair v Michigan, 470 Mich. 105, 121; 680 N.W.2d 386 (2004). For purposes of res judicata, parties are in privity if they are "so identified in interest with another party that the first litigant represents the same legal right that the later litigant is trying to assert." Id. at 122.
Here, the trial court decided in Docket No. 353097 that the Board did not violate the OMA by going into a closed session at the August 5, 2019 public meeting. Although Emsley's complaint in Docket No 353097 did not identify the August 5, 2019 meeting as one of the sessions challenged, in the course of that litigation he argued before the trial court that the Board had violated the OMA by going in to a closed session on that date, and requested to amend his complaint to allege a violation of the OMA at that meeting. The trial court thereafter addressed and decided the merits of Emsley's arguments regarding the August 5, 2019 closed session, holding that the evidence demonstrated that the Board did not violate the OMA by entering a closed session on that date. Emsley was a plaintiff in both actions, and Mr. Sunshine was in privity with Emsley in light of its substantial identity of interests with Emsley. See id. Accordingly, because the trial court decided in Docket No. 353097 that the Board did not violate the OMA by entering into closed session on August 5, 2019, the trial court properly determined that the same claim raised by plaintiffs in Docket 354162 was barred by res judicata.
I. REQUEST TO AMEND (DOCKET NO. 354162)
Plaintiffs also contend that the trial court abused its discretion by denying their motion to amend their complaint in Docket No. 354162. We disagree. In their response to Rosati's motion for summary disposition, plaintiffs requested that the trial court permit them to amend their complaint, but did not specify the proposed amendment. When a party seeks to amend a complaint, the party must offer the proposed amendment in writing; when a plaintiff fails to so do, the trial court does not abuse its discretion by denying the request to amend. Twp of Grayling v Berry, 329 Mich App 133, 151-152; 942 N.W.2d 63 (2019). Accordingly, the trial court did not abuse its discretion by declining to allow plaintiffs to amend their complaint.
Affirmed.