Opinion
No. 358042
10-20-2022
MR. SUNSHINE and Jason Andrich, Plaintiffs-Appellants, v. DELTA COLLEGE BOARD OF TRUSTEES, Defendant-Appellee.
Roland J. Jersevic, Saginaw, for plaintiffs. Cummings, McClorey, Davis & Acho, PLC (by Benjamin A. Tigay and Douglas J. Curlew) for defendant.
Saginaw Circuit Court, LC No. 20-043058-CZ, Darnell Jackson, J.
Roland J. Jersevic, Saginaw, for plaintiffs.
Cummings, McClorey, Davis & Acho, PLC (by Benjamin A. Tigay and Douglas J. Curlew) for defendant.
Before: M. J. Kelly, P.J., and Cameron and Hood, JJ.
Cameron, J.
599This lawsuit arises from plaintiffs’ allegations that defendant violated the Open Meetings Act (OMA), MCL 15.261 et seq., when defendant improperly discussed board matters in a closed session. Plaintiffs now appeal the trial court’s order granting summary disposition in favor of defendant under MCR 2.116(C)(10). We affirm.
600I. BACKGROUND FACTS AND PROCEDURAL HISTORY
Defendant, the Delta College Board of Trustees, is a public body subject to the OMA. Plaintiffs, Mr. Sunshine and Jason Andrich, allege that defendant violated the OMA when defendant held a closed session during a board meeting on June 9, 2020. The minutes from that meeting show that defendant initiated the closed session after "[a board member] made a motion that the Board go into Closed Session Pursuant to [MCL 15.268(h)] of the [OMA.] to Consider Material Exempt from Discussion or Disclosure by State or Federal Statute—a Written Legal Opinion. [Another board member] seconded the motion." The minutes included a roll call vote showing unanimous support for the closed session. Defendant then entered the closed session to discuss the written legal opinion with its attorney.
Orders from our Supreme Court are binding if they are a final disposition of an application containing a concise statement of the applicable facts and the reason for the decision. See DeFrain v State Farm Mut Auto Ins Co, 491 Mich. 359, 369, 817 N.W.2d 504 (2012).
MCL 15.268 was amended effective December 27, 2021, and Subsections (a) through (l) were recodified as Subsections (1)(a) through (1)(l). See 2021 PA 166. This opinion uses the previous codification scheme, which was in place when the trial court issued its decision.
That is not to say that the Supreme Court has never used a plain-error analysis in a civil case. In Wischmeyer v Schanz, 449 Mich. 469, 483, 536 N.W.2d 760 (1995), our Supreme Court stated that "[u]nder MRE 103, we review unpreserved error and reverse only if the substantial rights of a party are affected." The unpreserved issue in Wischmeyer was an evidentiary issue. Id.
In my view, Wischmeyer is not inconsistent with Napier and Walters. MRE 103 addresses the effect of erroneous evidentiary rulings, the requirements for objecting to the admission of evidence, and the circumstances under which an offer of proof may or may not be necessary. MRE 103(a). Relevant to the preservation requirements, MRE 103(d) provides that "[n]othing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court." MRE 103 does not apply to all issues that may be raised in civil litigation; indeed, it is, by its nature, a rule governing the admission of evidence. Accordingly, I read Wischmeyer and MRE 103(d) as standing for the proposition that, in all cases, as it relates to unpreserved evidentiary issues, if the issue is reviewed, that review is for plain error affecting substantial rights. Neither Wischmeyer nor MRE 103(d) requires that the issue be reviewed. Thus, even if an evidentiary issue was not preserved in the trial court, I would apply the raise-or-waive rule from Walters. And, were it appropriate to exercise this Court’s limited discretion to review unpreserved issues, the standard of review that I would apply would be the plain-error standard required by MRE 103(d) and Wischmeyer.
Moreover, even if Wischmeyer were inconsistent with Walters, I would be bound to follow Walters, which was decided by our Supreme Court in 2008, instead of Wischmeyer, which was decided in 1995.
Plaintiffs filed a complaint alleging that the discussions held during closed session violated the OMA’s public-disclosure requirements and that defendant impermissibly invited an attorney to its closed session. Plaintiffs further argued that defendant failed to satisfy the OMA’s procedural requirements. Defendant moved for summary disposition, contending that under MCR 2.116(C)(10), there was no genuine dispute of material fact demonstrating that defendant failed to comply with the OMA. Defendant noted that the 601material discussed at the closed session was a written legal opinion, which is exempt from public disclosure because it is subject to attorney-client privilege. The trial court granted defendant’s motion, and this appeal followed.
Although not raised in this appeal, defendant also moved for summary disposition under MCR 2.116(C)(7), arguing the complaint was barred by res judicata or collateral estoppel, but the trial court rejected tills argument.
See, e.g., Kern v Blethen-Coluni, 240 Mich App 333, 336, 612 N.W.2d 838 (2000) (citing Carines and MRE 103); Demski v Petlick, 309 Mich App 404, 426-427, 873 N.W.2d 596 (2015) (citing Carines and Kern); Total Armored Car Serv, Inc v Dep’t of Treasury, 325 Mich App 403, 412, 926 N.W.2d 276 (2018) (citing Carines and Henderson v Dep’t of Treasury, 307 Mich App 1, 9, 858 N.W.2d 733 (2014)). In my view, each opinion erroneously relies on the plain-error standard set forth in Carines instead of the Supreme Court’s raise-or-waive jurisprudence that is applicable to civil cases.
II. PRESERVATION AND STANDARD OF REVIEW
[1] An issue is preserved if it is raised in the trial court. Peterman v Dep’t of Natural Resources, 446 Mich. 177, 183, 521 N.W.2d 499 (1994). For the most part, plaintiffs’ arguments are preserved for our review because they were presented in the trial court. However, on appeal plaintiffs offer the new argument that defendant failed to offer any proof that the material considered during the closed session was a privileged document. Because this argument was not presented to the trial court, the issue is unpreserved. Id.
[2–4] A trial court’s decision to grant or deny summary disposition is reviewed de novo. Henry Ford Health Sys. v Everest Nat’l Ins. Co., 326 Mich App 398, 402, 927 N.W.2d 717 (2018). However, plaintiffs’ unpreserved argument is reviewed for plain error affecting substantial rights. Henderson v Dep’t of Treasury, 307 Mich App 1, 9, 858 N.W.2d 733 (2014). To demonstrate a plain error, a party must show: "(1) that an error occurred, (2) that the error was plain, and (3) that the plain error affected [the party’s] substantial rights." Id. (quotation marks and citation omitted). "The third factor requires [the party] to show [they were] prejudiced by the error such that it affected the outcome of the proceedings…." Id.
[5–10] "Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Henry Ford Health Sys, 602326 Mich App at 402, 927 N.W.2d 717 (quotation marks and citation omitted). This Court reviews the interpretation of statutes and court rules de novo. Wilcoxon v Wayne Co Neighborhood Legal Servs, 252 Mich App 549, 553, 652 N.W.2d 851 (2002). "When interpreting a court rule, we apply the same rules as when we engage in statutory interpretation." Id.
When interpreting statutes, the primary goal of the judiciary is to ascertain and give effect to the intent of the Legislature. When the Legislature has unambiguously conveyed its intent within a statute, judicial interpretation is neither necessary nor permitted. However, if the intent of the Legislature is not clear, courts must interpret statutes in a way that gives effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory. If a word is not defined in a statute, that word should be interpreted according to its plain and ordinary meaning, and in those situations, [this Court] may consult dictionary definitions. Judicial interpretation of statutes should construe an act as a whole to harmonize its provisions and carry out the purpose of the Legislature. [Haynes v Village of Beulah, 308 Mich App 465, 468, 865 N.W.2d 923 (2014) (quotation marks and citations omitted; alteration in original).]
III. EXCEPTIONS TO PUBLIC DISCLOSURE
[11] Plaintiffs argue that the open-meetings exception set forth in MCL 15.268(h) is inapplicable to this case because defendant invited an attorney to the closed session. Plaintiffs also contend that defendant’s use of MCL 15.268(h) was a ruse used to discuss matters it did not want publicly disclosed. Plaintiffs’ arguments lack merit. [12, 13] "[T]he purpose of the OMA is to promote governmental accountability by facilitating public access to official decision making and to provide a means through 603which the general public may better understand issues and decisions of public concern." Vermilya v Delta College Bd of Trustees, 325 Mich App 416, 419, 925 N.W.2d 897 (2018) (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). "All persons must be permitted to attend any meeting except as otherwise provided in this act." MCL 15.263(1). Absent an exception, a public body must ensure that "[a]ll deliberations … constituting a quorum of its members … take place at a meeting open to the public…." MCL 15.263(3). "To further the OMA’s legislative purposes, the Court of Appeals has historically interpreted the statute broadly, while strictly construing its exemptions and imposing on public bodies the burden of proving that an exemption exists," Booth Newspapers, Inc. v Univ. of Mich. Bd. of Regents, 444 Mich. 211, 223, 507 N.W.2d 422 (1993).
However, a public body may go into a closed session for certain limited purposes. MCL 15.268. Relevant to this appeal, these purposes include:
(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. [MCL 15.268(e) and (h).]
[14] 604In this case, defendant’s minutes reflect that it initiated a closed session under MCL 15.268(h) to consider "a [w]ritten [l]egal [o]pinion." Under Michigan’s Freedom of Information Act (the FOIA), MCL 15.231 et seq., a public body may exempt from disclosure "[i]nformation or records subject to the attorney-client privilege." MCL 15.243(1)(g). And an attorney’s written legal opinion is subject to the attorney-client privilege. People v Whitney, 228 Mich App 230, 246, 578 N.W.2d 329 (1998), citing Booth Newspapers, Inc v Wyoming City Council, 168 Mich App 459, 468, 425 N.W.2d 695 (1988). Thus, defendant’s decision to initiate a closed session to discuss a written legal opinion falls within MCL 15.268(h) because material and discussions subject to the attorney-client privilege are statutorily exempt from public disclosure under the FOIA.
A. INVITATION TO ATTORNEY
[15] Plaintiffs nevertheless argue that an attorney’s attendance at a closed session renders MCL 15.268(h) inapplicable and, therefore, defendant’s stated authority for initiating a closed session was flawed. But plaintiffs overlook similar situations where an attorney has participated in a closed session under MCL 15.268(h).
For example, in Whitney, 228 Mich App at 246-247, 578 N.W.2d 329, this Court analyzed whether a city council’s closed session violated the OMA. While the council voted to enter closed session under MCL 15.268(h) to consider letters written by its attorney, its discussions during the closed session went beyond the content of the letters. Id. at 247, 578 N.W.2d 329. This Court stated that a public body may not "evade the open meeting requirements of the OMA merely by involving a written opinion from an 605attorney in the substantive discussion of a matter of public policy for which no other exemption in the OMA would allow a closed meeting." Id. at 247, 578 N.W.2d 329. Importantly, the Court noted that MCL 15.268(h) does permit the public body to consult with an attorney during a closed session, so long as the discussion is "limited to the meaning of any strictly legal advice presented in the written opinion." Whitney, 228 Mich App at 247, 578 N.W.2d 329.
In Wyoming City Council, 168 Mich App at 470-471, 425 N.W.2d 695, this Court considered whether a city council violated the OMA when it held several closed sessions to consider an attorney’s written legal opinion under MCL 15.268(h). As in Whitney, the attorney attended each of the closed sessions at issue. Wyoming City Council, 168 Mich App at 463-465, 425 N.W.2d 695. This Court determined that the city council violated the OMA to the extent its discussions during the closed sessions exceeded the scope of the attorney’s witten opinion, stating:
We conclude that the attorney-client privilege which may be asserted regarding the consideration and discussion of a written legal opinion under [MCL 15.268(h)] is no broader or narrower than this common law privilege. We, therefore, hold that [MCL 15.268(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, economies, or other tangential nonlegal matters. [Id. at 468, 425 N.W.2d 695.]
[16] Whitney and Wyoming City Council cannot be read to impose restrictions on whom a public body may invite to attend a closed meeting called pursuant to MCL 15.268(h). To the contrary, we conclude that a 606public body does not exceed the scope of MCL 15.268(h) when an attorney participates in a closed session to discuss legal advice. Instead, the OMA is violated when the considerations discussed during the closed session exceed the scope of the confidential legal advice.
In this case, there is no evidence that the discussions during the June 9 closed session exceeded the scope of the written legal opinion. Likewise, there is no evidence that defendant sought to circumvent its public-disclosure requirement by involving a written legal opinion. Plaintiffs offer only vague speculation about what could have happened during the closed session, and without some evidence, this Court cannot conclude that the trial court erred by granting defendant’s motion for summary disposition on this basis.
In so concluding, we decline defendant’s invitation use the Michigan Attorney General’s "OMA Handbook" as instructive authority on this matter. The Attorney General’s handbook is nothing more than one department’s effort to provide a quick reference guide to a wide range of public bodies, not a judicial shortcut for nuanced legal issues, See also Vermilya, 325 Mich App at 423, 925 N.W.2d 897.
[17] Plaintiffs make a number of other arguments contending that a public body violates the OMA when it invites an attorney to a closed session under MCL 15.268(h). Plaintiffs first make a plain-language argument, contrasting the dictionary definitions of the verbs "consult" and "consider" within the relevant statutory exceptions, MOL 15.268(e) and MCL 15.268(h), respectively, Plaintiffs do not explain why this "significant difference in meaning" for these verbs leads to the conclusion an attorney is not permitted to 607participate in the closed session under MCL 15.268(h). Thus, plaintiffs’ plain-language argument is abandoned. See MOSES, Inc v SEMCOG, 270 Mich App 401, 417, 716 N.W.2d 278 (2006) ("If a party fails to adequately brief a position, or support a claim with authority, it is abandoned.").
MCL 15.268(e) uses the verb "consult," the relevant meaning of which is "to ask the advice or opinion of," Merriam-Webster’s Collegiate Dictionary (11th ed.). MCL 15.268(h) employs "consider," which is defined as "to think about carefully." Merriam-Webster’s Collegiate Dictionary (11th ed.).
[18–20] Next, plaintiffs emphasize that the word "attorney" is used only in the OMA exception from MCL 15.268(e), and therefore an attorney is not permitted to participate in a closed meeting initiated under MCL 15.268(h). They argue that under the principle of statutory interpretation expressio unius est exclusio alterius, the Legislature only intended Subsection (e) to allow an attorney at a closed session. But plaintiffs misconstrue the application of expressio unius. Expressio unius is a principle of statutory interpretation meaning "the expression of one thing is the exclusion of another." Mich. Ambulatory Surgical Ctr. v Farm Bureau Gen. Ins. Co. of Mich., 334 Mich App 622, 632, 965 N.W.2d 650 (2020). However, "[t]he maxim expressio unius est exclusio alterius … has force only when the items expressed are members of an associated group or series, justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence." Id. (quotation marks and citations omitted). The exclusions under MCL 15.268 are not "members of an associated group or series," but rather are a list of different circumstances allowing a public body to diverge from the OMA’s public-disclosure requirement. MCL 15.268(e) sets forth an exception for specific matters involving pending litigation. MCL 15.268(h), meanwhile, pertains more generally to other matters that are exempt from public disclosure. See, e.g., MCL 15.243. Thus, plaintiffs’ statutory construction arguments are misplaced.
608B. PRETEXT
[21, 22] Plaintiffs also argue that summary disposition was inappropriate because defendant’s application of MCL 15.268(h) was simply pretext used to improperly discuss matters it did not want disclosed to the public. We agree, of course, that a public body may not enter closed session to discuss matters it does not want publicly disclosed and that are not otherwise exempt from disclosure. See Whitney, 228 Mich. App. at 247, 578 N.W.2d 329. However, in making this argument, plaintiffs forget their burden as the nonmoving party. Defendant argued it was entitled to summary disposition because it entered closed session to consider a written legal opinion. Plaintiffs were obliged to offer some documentary evidence to the contrary to negate defendant’s assertion. See Coblentz v Novi, 475 Mich. 558, 568-569, 719 N.W.2d 73 (2006). Plaintiffs offer no evidence that defendant’s purpose in going to closed session was anything other than to consider the written legal opinion. Plaintiffs’ bare suspicions of a ruse, without more, fail to establish that a genuine issue of material fact exists.
IV. PROCEDURAL REQUIREMENTS
[23] Plaintiffs next argue that defendant failed to satisfy certain procedural requirements of the OMA that must occur before a closed session is initiated. Therefore, plaintiffs assert that defendant was never authorized to enter a closed session under the OMA. We disagree.
The OMA’s procedural requirements include MCL 15.267(1), which states:
A ? roll call vote of members elected or appointed and serving is required to call a closed session, except for the closed sessions permitted under section 8(a), (b), (c), (g), 609(i), and (j). The roll call vote and the purpose or purposes for calling the closed session shall be entered into the minutes of the meeting at which the vote is taken.
And, MCL 15.269(1) provides in part:
Each public body shall keep minutes of each meeting showing the date, time, place, members present, members absent, any decisions made at a meeting open to the public, and the purpose or purposes for which a closed session is held. The minutes shall include all roll call votes taken at the meeting.
Each of these provisions was satisfied in this case. Regarding MCL 15.267(1), the June 9 meeting minutes show a roll call vote unanimously approving the closed session. And the minutes state the purpose of the closed session was to consider a written legal opinion under MCL 15.268(h). With respect to the requirements under MCL 15.269(1), the meeting minutes provided as an exhibit in the lower court record included only two of the 13 pages of minutes from the June 9 meeting. The minutes do not include statements showing "the date, time, place, members present, members absent, [or] any decisions made at a meeting open to the public…." MCL 15.269(1). Regardless, plaintiffs do not dispute the absence of these items. Rather, plaintiffs’ arguments rest on whether the minutes adequately reflect "the purpose or purposes for which a closed session is held" and the "roll call votes taken at the meeting." We conclude that the minutes satisfy these requirements because they state the purpose of the closed session was to consider a written legal opinion, and, as noted, they include a roll call vote to enter the closed session. There was nothing procedurally defective about defendant’s processes before it entered the closed session during the June 9 meeting.
610Nevertheless, plaintiffs present several arguments attempting to show that defendant failed to satisfy the OMA’s procedural requirements to enter a closed session. Plaintiffs’ first argument correctly notes that as a public body, defendant has certain recordkeeping obligations. MCL 15.267(1) and MCL 15.269(1). Plaintiffs contend that defendant violated its recordkeeping requirements because the June 9 meeting minutes fail to indicate that defendant "invited" an attorney to the closed session. Plaintiffs’ argument is misplaced. MCL 15.267(1) and MCL 15.269(1) articulate defendant’s recordkeeping obligation in this circumstance, and the June 9 meeting minutes demonstrate that defendant satisfied these requirements. Moreover, plaintiffs provide no authority stating that a public body must indicate its invitation to an attorney in its meeting minutes.
[24] Next, plaintiffs take issue with defendant’s purported failure to identify the "purpose" of the closed session. Under MCL 15.267(1) and MCL 15.269(1), a public body must state its "purpose" in calling a closed session. Practically speaking, this means the public body should "separate exempt and nonexempt material, describe where practicable the exempt material, make the nonexempt material available, and state on the record the purpose of the closed session before initiating the closed session." Herald Co, Inc v Tax Tribunal, 258 Mich App 78, 86, 669 N.W.2d 862 (2003), overruled on other grounds by Speicher, 497 Mich. 125, 860 N.W.2d 51; see also Vermilya, 325 Mich App at 422, 925 N.W.2d 897.
Defendant stated that its purpose in entering the closed session was to "consider material exempt from discussion or disclosure by state or federal statute—a written legal opinion." Plaintiffs argue that this description was insufficient because it is a "mere[ ] recit[ation]"611 of the statutory language. They go on to argue that defendant should have followed the specific disclosures described in Herald, 258 Mich App at 82-83, 669 N.W.2d 862 and Vermilya, 325 Mich App at 422, 925 N.W.2d 897, but plaintiffs’ arguments do not describe how defendant’s stated purpose to enter the closed session did not conform with these authorities. Indeed, the June 9 meeting minutes go beyond a "mere[ ] recit[ation]" of the statutory language because they state the purpose of the closed session was to consider a "written legal opinion." MCL 15.268(h) requires no further disclosure of the purpose or nature of the meeting.
[25] In addition to these alleged deficiencies, plaintiffs argue that defendant was obliged to identify and describe at the board meeting the general nature of the document defendant would discuss at the closed session. Plaintiffs contend that Herald stands for the proposition that "the document used to justify the closed session must be sufficiently identified to confirm that it is, in fact, privileged." But plaintiffs seek to extend Herald too far. Herald states that the public body need only "describe where practicable the exempt material … unless description would defeat the purpose of the nondisclosure…." Herald, 258 Mich App at 86-87, 669 N.W.2d 862. Put differently, there is no requirement for the public body to offer proof that the document at issue is privileged, particularly when—as is the case here—the disclosure would likely defeat the confidential nature of the exempt material. Instead, all that MCL 15.268(h) requires is that the public body describe the document. Defendant satisfied this requirement by indicating that the closed session involved a written legal opinion.
612V. MOTION FOR SUMMARY DISPOSITION
[26] Plaintiffs next argue that the trial court erred by granting defendant’s motion for summary disposition because defendant’s motion did not state all the issues for which there was no genuine dispute of material fact. We disagree.
[27] A motion for summary disposition "must specify the grounds on which it is based[.]" MCR 2.116. Defendant specified that its summary-disposition motion was based on the grounds stated in MCR 2.116(C)(10): "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." (Emphasis added). A fact "does not need to be outcome determinative in order to be material, but it should be ‘significant or essential to the issue or matter at hand.’" McCormick v Carrier, 487 Mich. 180, 194, 795 N.W.2d 517 (2010), quoting Black’s Law Dictionary (8th ed.).
As discussed, a written legal opinion is considered exempt material under MCL 15.268(h). Whitney, 228 Mich App at 246, 578 N.W.2d 329. For purposes of defendant’s motion for summary disposition, the only issue of material fact was whether defendant entered the closed session to consider exempt material. Defendant’s motion for summary disposition complied with the pleading requirements under MCR 2.116(C)(10) because it stated there is no question of material fact that the purpose of the closed session was to consider a written legal opinion, which is exempt from public disclosure under the FOIA. MCL 15.243(1)(g).
Plaintiffs take issue with two statements in the motion for summary disposition. The first is: "[T]he Defendant complied with the OMA when it met in closed session to discuss a written legal opinion under 613Section 8(h) of the OMA and invited legal counsel in which the Defendant considered the written legal opinion." The second is: "[T]he Defendant’s meeting minutes comply with the OMA since they identify the basis under the OMA under which the Defendant’s Board is authorized to enter closed session[.]" (Underlining omitted.) According to plaintiffs, these statements are conclusions of law, not statements of undisputed facts. Therefore, defendant’s motion for summary disposition was deficient because the referenced statements were conclusions of law, instead of statements of undisputed facts.
Neither of these statements bears any weight on the question of whether defendant specified that "there is no genuine issue as to any material fact" under MCR 2.116(C)(10). As noted, the only question of material fact was whether the purpose of the closed session was to consider exempt material. It appears that the purpose of these statements was to demonstrate the grounds for defendant’s motion for summary disposition and that defendant was "entitled to judgment … as a matter of law," the other pleading requirements under MCR 2.116(C)(10). Accordingly, there is nothing incorrect with these statements warranting this Court’s reversal of the motion for summary disposition.
Affirmed.
Hood, J., concurred with Cameron, J,
M. J. Kelly, P.J. (concurring).
I concur with the majority’s decision to affirm summary disposition in favor of defendant. I write separately, however, because I would apply our Supreme Court’s raise-or-waive jurisprudence to plaintiffs’ unpreserved issue, 614rather than plain-error analysis. This issue has been simmering in this Court for far too long and needs to be addressed directly in a thorough manner.
Whether an issue is or is not preserved is a threshold question in every appeal that comes before this Court. Preserving an issue for appeal is not particularly onerous. Generally, an issue is preserved for review if it was "raised before, addressed, or decided by" the trial court. Polkton Twp v Pellegrom, 265 Mich App 88, 95, 693 N.W.2d 170 (2005) (emphasis added). Thus, if a litigant raises an issue in the trial court, but the trial court does not address it, the issue is preserved. Wells v State Farm Fire & Cas Co, 509 Mich. 855, 856, 969 N.W.2d 67 (2022);1a see also Klooster v Charlevoix, 488 Mich. 289, 310, 795 N.W.2d 578 (2011) (stating that "a party should not be punished for the omission of the trial court") (quotation marks and citation omitted).
In criminal cases, the failure to preserve an issue does not preclude appellate review of the unpreserved issue. Instead, such unpreserved issues are reviewed for plain error affecting a defendant’s substantial rights. People v Carines, 460 Mich. 750, 763-764, 597 N.W.2d 130 (1999). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, [and 3)] the plain error affected substantial rights." Id. at 763, 597 N.W.2d 130. To show that the error affected his or her substantial rights, the defendant bears the burden of showing "prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id. Yet, even if "a defendant satisfies these three requirements,615 an appellate court must exercise its discretion in deciding whether to reverse." Id. "Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant’s innocence." Id. (quotation marks, citation, and brackets omitted).
Our Supreme Court has applied a version of the plain-error standard to unpreserved issues in child protective proceedings. See In re Ferranti, 504 Mich. 1, 29, 934 N.W.2d 610 (2019). In doing so, the Supreme Court noted that "[t]he final requirement of plain-error review is also satisfied ‘when the plain, forfeited error resulted in the conviction of an actually innocent defendant,’ Carines, 460 Mich. at 763, 597 N.W.2d 130, which reflects plain error’s origin as a rule of federal criminal procedure[.]" Ferranti, 504 Mich. at 29 n 13, 934 N.W.2d 610. The Ferranti Court recognized that it had applied the plain-error standard "without explanation" to prior appeals from juvenile proceedings, and it stated that it was applying the plain-error test "here because neither party has argued for a different standard for juvenile proceedings despite the differences between these cases and criminal cases." Id.
Our Supreme Court, however, has not expressed any reservations regarding unpreserved issues in civil cases. Instead, in civil cases, it has long applied the raise-or-waive rule. See Napier v Jacobs, 429 Mich. 222, 227–229, 414 N.W.2d 862 (1987) (listing cases where the failure to preserve an issue in the trial court precluded appellate review and explaining the rationale for the raise-or-waive rule). The raise-or-waive rule and its rationale were succinctly rearticulated in Walters v Nadell, 481 Mich. 377, 751 N.W.2d 431 (2008);
616Michigan generally follows the "raise or waive" rule of appellate review. Under our jurisprudence, a litigant must preserve an issue for appellate review by raising it in the trial court. Although this Court has inherent power to review an issue not raised in the trial court to prevent a miscarriage of justice, generally a "failure to timely raise an issue waives review of that issue on appeal."
The principal rationale for the rule is based in the nature of the adversarial process and judicial efficiency. By limiting appellate review to those issues raised and argued in the trial court, and holding all other issues waived, appellate courts require litigants to raise and frame their arguments at a time when their opponents may respond to them factually. This practice also avoids the untenable result of permitting an unsuccessful litigant to prevail by avoiding its tactical decisions that proved unsuccessful. Generally, a party may not remain silent in the trial court, only to prevail on an issue that was not called to the trial court’s attention. Trial courts are not the research assistants of the litigants; the parties have a duty to fully present their legal arguments to the court for its resolution of their dispute. [Id. at 387-388, 751 N.W.2d 431 (citations omitted).]
See also Booth Newspapers, Inc. v Univ. of Mich. Bd. of Regents, 444 Mich. 211, 234 n 23, 507 N.W.2d 422 (1993) (listing eases where the Michigan Supreme Court has declined to consider arguments that were not raised in the trial court and noting that it had "only deviated from that rule in the face of exceptional circumstances").
Our Supreme Court has continued to apply the raise-or-waive jurisprudence to opinions issued after Walters. See, e.g., Sholberg v Truman, 496 Mich. 1, 6 n 6, 852 N.W.2d 89 (2014); In re Baby Boy Doe, 509 Mich. 1056, 1060 n 6, 975 N.W.2d 486 (2022); Wells, 509 Mich. at 855-856, 969 N.W.2d 67. Moreover, our Supreme Court has chastised this Court for failing to apply the raise-or-waive rule. See Admire v Auto-Owners, 494 Mich. 10, 17 n 5, 831 N.W.2d 849 617 (2013) ("The Court of Appeals erred by considering the implications of the transportation purchase agreement because plaintiff never raised that issue in his complaint or argued it at the trial court. Therefore, the issue was waived."). See also Baxter v Geurink, 493 Mich. 924, 824 N.W.2d 564 (2013) (reversing this Court’s opinion in part because, under the raise-or-waive rule, the plaintiff’s failure to raise the issue in the trial court left the issue unpreserved and, therefore, waived).2a
This Court has not maintained the same degree of consistency. Instead, this Court has applied the raise-618or-waive rule in numerous published opinions. See Miller v Mich. Dept of Corrections, 343 Mich.App. 104, 114–115, 996 N.W.2d 738 (2022) (applying the raise-or-waive rule to an unpreserved issue in a civil case); In re Huntington Estate, 339 Mich App 8, 25-27, 981 NW2d 72 (2021) (accord); Soaring Pine Capital Real Estate and Debt Fund II, LLC v Park Street Group Realty Servs, LLC, 337 Mich App 529, 539-540, 976 N.W.2d 674 (2021) (accord); In re Murray Conservatorship, 336 Mich App 234, 240, 970 N.W.2d 372 (2021) (accord); Shah v State Farm Mut. Auto. Ins. Co., 324 Mich App 182, 192-194, 920 N.W.2d 148 (2018) (accord); and Bailey v Schaaf, 304 Mich App 324, 344-345, 852 N.W.2d 180 (2014), vacated in part on other grounds 497 Mich. 927, 856 N.W.2d 692 (2014) (accord).
In other cases, however, this Court has, without explanation, deviated from the raise-or-waive rule set forth by our Supreme Court in Napier and Walters to address unpreserved errors in civil cases and instead applied the plain-error rule articulated by our Supreme Court in Ca- rines to address unpreserved errors in criminal cases.3a The majority cites one such case: Henderson v Dep’t of Treasury, 307 Mich App 1, 858 N.W.2d 733 (2014). In Henderson, this Court stated that because the issue was unpreserved, "plain-error analysis [was] appropriate." Id. at 9, 858 N.W.2d 733. In support, the Henderson Court cited two cases involving unpreserved 619issues in criminal cases: Carines and People v Kowalski, 489 Mich. 488, 505, 803 N.W.2d 200 (2011). The Henderson Court did not address, even in passing, the reasons that it was relying on Supreme Court precedent that was applicable to unpreserved issues in criminal cases despite the fact that there was binding Supreme Court precedent—i.e., Walters, 481 Mich. at 387, 751 N.W.2d 431—directing that, in civil cases, "Michigan generally follows the ‘raise or waive’ rule…."
Because this Court is not at liberty to ignore—and is, in fact, bound to follow—the holdings of our Supreme Court, I believe that the Henderson Court erred by applying the plain-error analysis instead of the raise-or-waive rule. It is a "fundamental principle that only [our Supreme Court] has the authority to overrule one of its prior decisions." Paige v Sterling Hts., 476 Mich. 495, 524, 720 N.W.2d 219 (2006). Thus, "[u]ntil [our Supreme Court] does so, all lower courts and tribunals are bound by that prior decision and must follow it even if they believe that it was wrongly decided or has become obsolete." Id. See also Pearce v Eaton Co. Rd. Comm., 507 Mich. 183, 195, 968 N.W.2d 323 (2021) (stating that even after a Supreme Court opinion "has been overruled in part, its holdings left untouched remain binding precedent" and that the Court of Appeals remains bound by those decisions until they have been "clearly … overruled or superseded ….").
Thus, because Walters is binding precedent that has not been overruled by our Supreme Court, this Court cannot refuse to follow the rule of law established. Therefore, notwithstanding the split in the Court of Appeals decisions as it relates to the proper manner of addressing unpreserved issues in civil cases, I would hold that we are bound to apply the raise-or-waive 620rule. I recognize that there is something of a teething period before a standard set down by our Supreme Court establishes deep enough roots in our jurisprudence to be applied consistently and universally. But that period should have ended long ago. Napier and Walters were handed down 35 and 14 years ago, respectively.
In this case, I would overlook the preservation requirements because, although unpreserved, plaintiffs’ argument is necessary for a proper determination of the case and involves a question of law that may be determined on the existing facts. See Smith v Foerster-Bolser Const, Inc. 269 Mich App 424, 427, 711 N.W.2d 421 (2006). Thereafter, because this is not an evidentiary error, see Wischmeyer v Schanz, 449 Mich. 469, 483, 536 N.W.2d 760 (1995); MRE 103(d), I would review de novo the trial court’s decision to grant summary disposition, Henry Ford Health Sys. v Everest Nat’l Ins. Co., 326 Mich App 398, 402, 927 N.W.2d 717 (2018). Under that stan- dard of review, I would affirm the trial court’s decision.