If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
DR. TIMOTHY MEYER, UNPUBLISHED
January 7, 2020
Plaintiff-Appellant,
v No. 345738
Oakland Circuit Court
OAKLAND COMMUNITY COLLEGE BOARD LC No. 2018-164535-CB
OF TRUSTEES, JOHN MCCULLOCH, SUSAN
ANDERSON, SHIRLEY BRYANT, PAMELA
DAVIS, and PAMELA JACKSON,
Defendants-Appellees.
Before: FORT HOOD, P.J., and SERVITTO and BOONSTRA, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court order granting summary disposition in favor of
defendants. We affirm the trial court’s grant of summary disposition in defendants’ favor with
respect to plaintiff’s claim for breach of contract and for plaintiff’s claim of violation of the
Open Meetings Act (OMA) to the extent plaintiff seeks invalidation of the Board’s decision
and/or injunctive relief. We reverse the trial court’s determination that plaintiff failed to state a
claim for a violation of the OMA to the extent that plaintiff seeks statutory damages, and remand
for proceedings consistent with this opinion.
Defendants are comprised of the Oakland Community College Board of Trustees (the
Board), and the specifically named board members acting in their official capacities as board
members. Plaintiff is the former chancellor of Oakland Community College (OCC). He was
hired as the chancellor pursuant to a January 1, 2012 contract which provided that it was
effective for an initial three-year period, then automatically renewed unless terminated or
converted to a fixed three-year term on or after January 1, 2017. The contract also contained
specific provisions regarding requirements to terminate plaintiff.
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On May 16, 2017, the Board met held a meeting. After an open session, the Board
adjourned into a closed session. When it returned to open session, the Board approved “the
plan” presented in the closed session.1 After the session ended, plaintiff was verbally informed
that his contract was being terminated by the Board. He thereafter received a letter informing
him that he was being placed on paid administrative leave pending further notification of the
Board. Plaintiff was sent a letter on May 22, 2017, indicating that his termination would be
effective as of July 6, 2017.
On March 21, 2018, plaintiff filed a complaint against the OCC Board and its members,
alleging breach of his employment contract and violation of the Open Meetings Act, MCL
15.261 et seq. In lieu of answering plaintiff’s complaint, the OCC Board of Trustees moved for
summary disposition pursuant to MCR 2.116(C)(7) and (8). A hearing was held on the motion
on September 5, 2018. In a September 13, 2018 opinion and order, the trial court found that
defendants2 did not breach the termination provision of the employment contract and that
plaintiff did not establish any damages for any breach of the contract. The trial court further
found that it was without jurisdiction to grant plaintiff’s requested relief with respect to its claim
concerning the OMA and that plaintiff’s allegations as stated in his complaint do not set forth a
violation of the OMA. The trial court thus granted defendants’ motion for summary disposition.
This appeal followed.
This Court reviews a trial court’s grant or denial of summary disposition de novo. Al-
Shimmari v Detroit Med Ctr, 477 Mich 280, 287; 731 NW2d 29 (2007). Summary disposition
should be granted under MCR 2.116(C)(7) if “[t]he claim is barred because of . . . statute of
limitations . . .” among other things. Id. at 288. In reviewing a motion under subrule (C)(7), a
court accepts as true the plaintiff’s well-pleaded allegations of fact, construing them in the
plaintiff’s favor, and must consider affidavits, pleadings, depositions, admissions, and any other
admissible documentary evidence submitted by the parties, to determine whether a genuine issue
of material fact exists. Nuculovic v Hill, 287 Mich App 58, 61; 783 NW2d 124 (2010).
“A motion for summary disposition under subrule (C)(8) tests the legal sufficiency of the
pleadings alone.” Id. Thus, when deciding a motion under (C)(8), this Court accepts all well-
pleaded factual allegations as true, construing them in the light most favorable to the nonmoving
party. Dalley v Dykema Gossett, 287 Mich App 296, 304–05; 788 NW2d 679 (2010). Summary
disposition under subrule (C)(8) should be granted only when the claim is so clearly
unenforceable as a matter of law that no factual development could possibly justify a right of
recovery. Id. at 305 (quotation marks and citation omitted).
The proper interpretation of a contract is a question of law that we review de novo.
Klapp v United Ins Group Agency, Inc, 468 Mich 459, 463; 663 NW2d 447 (2003). In
1
The minutes of the Board meeting do not specify what “the plan” was.
2
Because the individually named defendants were sued in their official capacity of OCC Board
members, the trial court treated the Board’s motion for summary disposition as having been filed
on behalf of all defendants.
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interpreting a contract, this Court’s obligation is to determine the intent of the parties and we do
so by examining the language of the contract according to its ordinary and plain meaning, if such
meaning is apparent. In re Smith Tr, 274 Mich App 283, 285; 731 NW2d 810, 811–12 (2007).
“If the contractual language is unambiguous, courts must interpret and enforce the contract as
written.” Id. at 812.
Plaintiff first argues on appeal that the trial court erred in granting defendants’ motion for
summary disposition on his breach of contract claim where no discovery had yet taken place and
where there is a factual dispute as to whether defendants’ action in terminating his contract was
consistent with the contract’s timing provisions. Summary disposition is generally premature if
granted before discovery on a disputed issue is complete. State Treasurer v Sheko, 218 Mich
App 185, 190; 553 NW2d 654 (1996). “However, summary disposition is not premature if the
discovery does not stand a fair chance of uncovering factual support for opposing the motion for
summary disposition.” Id. That is the case here.
The contract at issue was attached to plaintiff’s complaint and is thus part of the
pleadings.3 The contract provides that plaintiff’s employment as Chancellor of Oakland
Community College commences on January 1, 2012, and, “subject to the provisions of Section
7,” ends on January 1, 2015. The contract further states that the parties intend for the contract to
be “evergreen,” meaning that the term of employment would automatically renew, but that:
at any time on or after January 1, 2017, the Board may, at its discretion, convert
the Term to a fixed three year term, which shall expire at the end of three years
following such conversion. The Board shall provide written notice to Dr. Meyer
of its election to convert the Term of this Contract to a fixed three year term.
Section 7 of the contract provides, in relevant part:
Termination. Dr. Meyer’s employment as Chancellor can be terminated
during the Term or prior to its expiration as follows:
***
C. The Board may terminate this Contract without Just Cause after forty-
five (45) days of providing written notice to the Chancellor, and upon a two-thirds
majority vote of the full Board. The termination of Dr. Meyer’s employment as
Chancellor for his death or disability shall not constitute termination without Just
Cause.
Plaintiff asserts that the above provision sets forth a three-step chronological process by which
he could be terminated without cause and that defendants’ failure to follow the process in the
specific order required breached the parties’ contract. According to plaintiff, first, written notice
3
Once attached to the complaint, a written instrument required to be attached to the complaint
under MCR 2.113(C), such as a contract, becomes part of that pleading for all purposes. Laurel
Woods Apartments v Roumayah, 274 Mich App 631, 635; 734 NW2d 217 (2007).
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must be provided to him. Next, 45 days must pass after the written notice was provided. Third,
after the 45-day period has passed, a vote of the Board must take place and if 2/3 of the Board
voted to do so, he may be terminated. Plaintiff’s interpretation ignores the clear language of the
contract.
A party asserting a breach of contract must establish that “(1) there was a contract (2)
which the other party breached (3) thereby resulting in damages to the party claiming breach.”
Miller-Davis Co v Ahrens Const, Inc, 495 Mich 161, 178; 848 NW2d 95 (2014). Under long
standing contract principles, if contractual language is clear, construction of the contract is a
question of law for the court. Van Buren Charter Twp v Visteon Corp, 319 Mich App 538, 547;
904 NW2d 192 (2017). If the contract, although perhaps inartfully worded or clumsily arranged,
fairly admits of but one interpretation, it is not ambiguous and the unambiguous contractual
language must be enforced as written. Id.
Section 7 of the contract provides that the Board may terminate the contract without just
cause “after forty-five (45) days of providing written notice to the Chancellor, and upon a two-
thirds majority vote of the full Board.” Clearly, the Board must provide written notice to
defendant, which it did in a May 22, 2017 letter to him. The letter provides, in part:
I hereby inform you, on behalf of the Oakland Community College Board
of Trustees (“Board”), that effective July 6, 2017, the Chancellor Employment
Contract between you and the Board which became effective January 1, 2012 (the
“Contract”) is hereby terminated.
The Board approved the termination of the Contract on May 16, 2017,
upon a two-thirds majority vote of the full Board. At this time, termination of the
Contract is without just cause pursuant to paragraph 7.C of the Contract.
Written notice having been provided on May 22, 2017, the Board could terminate him 45 days
after having provided the written notice so long as 2/3 of the full Board voted to do so.
Plaintiff’s termination was to be effective July 6, 2017—exactly 45 days after the written notice
of termination was provided to him.
Plaintiff contends that a 2/3 majority vote of the Board must take place only after the 45
days set forth in the contract have passed. We read no such requirement in the contract. The
termination provision provides that the Board may terminate him without just cause “after forty-
five (45) days of providing written notice to the Chancellor, and upon a two-thirds majority vote
of the full Board” (emphasis added). The only chronological requirement is that the Board must
provide notice to plaintiff 45 days prior to his termination. The vote of the Board contains no
such timing requirement. It simply provides that a two-thirds majority of the Board must vote
terminate him before termination can take place. The vote is an additional general provision, not
one that is required to take place after the 45-day notice period. The provision states at the outset
that the Board “may terminate this Contract without Just Cause after forty-five (45) days of
providing written notice to the Chancellor . . . .” Had it been intended that the second
requirement, a 2/3 majority vote of the Board, take place only after the 45-day notice period, the
contract would have been worded to include it in that provision. For example, the contract could
have provided that the Board may terminate the contract if “the Board provides written notice to
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[plaintiff], 45 days after the notice have elapsed and, after the 45-day period, 2/3 of the majority
of the full Board thereafter votes to terminate [plaintiff].” The contract does not do so. It simply
provides that a 2/3 majority vote of the Board is also required prior to termination. We cannot
and will not read words into a contract that are not plainly there. Northline Excavating, Inc v
Livingston Co, 302 Mich App 621, 628; 839 NW2d 693 (2013). Moreover, this Court’s reading
and application of the clear contractual language is the only logical reading, given that, in order
for the Board to take the action of providing a notice of termination to plaintiff, it must have
taken some initial action agreeing to provide such notice (such as a majority vote).
In this case, a two-thirds majority vote of the full Board approving the termination of the
contract took place on May 16, 2017. Because the requirements of the termination provision set
forth in section 7 of the contract were followed, plaintiff is unable to prove a breach of contract
based on violation of that section. The claim is thus so clearly unenforceable as a matter of law
that no factual development could possibly justify a right of recovery. Dalley, 287 Mich App at
305. Summary disposition was appropriate on plaintiff’s breach of contract claim under MCR
2.116(C)(8).
Plaintiff next argues that the trial court erred in granting defendants’ motion for summary
disposition on his violation of the OMA claim when he properly pled facts showing that
defendants’ violated the OMA. We review a trial court’s grant of summary disposition de novo,
Al-Shimmari, 477 Mich at 287, and also review issues of statutory construction de novo. Davis v
City of Detroit Fin Review Team, 296 Mich App 568, 584; 821 NW2d 896 (2012). We review
for an abuse of discretion a trial court’s decisions whether to invalidate a decision made in
violation of the OMA and whether to grant or deny injunctive relief. Morrison v City of E
Lansing, 255 Mich App 505, 520; 660 NW2d 395 (2003), abrogated on other grounds by
Speicher v Columbia Tp Bd of Trustees, 497 Mich 125; 860 NW2d 51 (2014). However,
whether a trial court has subject-matter jurisdiction over a claim is a question of law that is
reviewed de novo. Harris v Vernier, 242 Mich App 306, 309; 617 NW2d 764 (2000).
The OMA generally requires meetings, decisions, and deliberations of a “public body” to
be open to the public. MCL 15.263(1), (2), and (3). The OMA defines the term “public body”
for its purposes to include:
any state or local legislative or governing body, including a board, commission,
committee, subcommittee, authority, or council, that is empowered by state
constitution, statute, charter, ordinance, resolution, or rule to exercise
governmental or proprietary authority or perform a governmental or proprietary
function; a lessee of such a body performing an essential public purpose and
function pursuant to the lease agreement; or the board of a nonprofit corporation
formed by a city under section 4o of the home rule city act, 1909 PA 279, MCL
117.4o. [MCL 15.262(a)]
The OMA defines a “meeting” as “the convening of a public body at which a quorum is present
for the purpose of deliberating toward or rendering a decision on a public policy, or any meeting
of the board of a nonprofit corporation formed by a city under section 4o of the home rule city
act, 1909 PA 279, MCL 117.4o.” MCL 15.262(b). And, it defines a “decision” as a
“determination, action, vote, or disposition upon a motion, proposal, recommendation,
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resolution, order, ordinance, bill, or measure on which a vote by members of a public body is
required and by which a public body effectuates or formulates public policy.” MCL 15.262(d).
A public body is permitted to meet in a closed session only for specific purposes listed in MCL
15.268.
It is undisputed that the Board is a public body, that it conducted a meeting on May 16,
2017, that during the meeting it met in a closed session, and that thereafter, in an open session on
the same date, it approved a plan presented in the closed session. Plaintiff alleged in his March
21, 2018 complaint that it was in this closed session meeting that the Board voted and agreed to
terminate his employment, and that its deliberation and decision made in a closed session
violated the OMA. In his complaint, plaintiff requested that the decision be invalidated, that he
be awarded statutory damages for the violation, and for “injunctive and/or declaratory relief
under the [Open meetings Act].” However, under MCL 15.270(3):
The circuit court shall not have jurisdiction to invalidate a decision of a public
body for a violation of this act unless an action is commenced pursuant to this
section within the following specified period of time:
(a) Within 60 days after the approved minutes are made available to the public by
the public body . . . .
The minutes for the May 16, 2017 meeting were signed and available on or about June 21, 2017.
Thus, in order for the circuit court to have jurisdiction to invalidate the decision made at the
meeting, plaintiff would have to have filed his complaint within 60 days of June 21, 2017.
Plaintiff did not file his complaint until March 21, 2018. The trial court thus had no jurisdiction
to invalidate the Board’s decision.
Plaintiff contends that MCL 15.270(3) is a statute of limitations and that it is inapplicable
because the parties’ agreed to a one year statute of limitations in their contract. Plaintiff is
mistaken.
A “statute of limitations” is “a law that bars claims after a specified period; specif., a
statute establishing a time limit for suing in a civil case, based on the date when the claim
accrued (as when the injury occurred or was discovered).” Black’s Law Dictionary (11th ed.).
“Jurisdiction,” on the other hand, is “[a] court’s power to decide a case or issue a decree.” Id.
Subject-matter jurisdiction pertains to a court’s abstract power over a class of cases, regardless of
the particular facts of the case. In re Complaint of Knox, 255 Mich App 454, 457; 660 NW2d
777 (2003).
MCL 600.605 states that “[c]ircuit courts have original jurisdiction to hear and determine
all civil claims and remedies, except . . . where the circuit courts are denied jurisdiction by the
constitution or statutes of this state.” A jurisdictional challenge need not be asserted in a
responsive pleading to avoid waiver. MCR 2.111(F)(2). A defense of lack of subject-matter
jurisdiction cannot be waived by a litigant, and “subject-matter jurisdiction cannot be granted by
implied or express stipulation of the litigants.” Vernier, 242 Mich App at 316. Moreover, a
court must take notice when it lacks jurisdiction. In re AMB, 248 Mich App 144, 167; 640
NW2d 262 (2001). Because the circuit court was denied jurisdiction to hear or determine a
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claim to invalidate the Board’s decision for violation of the OMA pursuant to MCL 15.270(3),
the court properly dismissed plaintiff’s claim for violation of the OMA to the extent that plaintiff
sought invalidation of the Board’s decision.4
Plaintiff also, however, requested that he be awarded statutory damages for defendants’
purported violation, and for “injunctive and/or declaratory relief” under the OMA. MCL 15.273
provides, in relevant part, that:
(1) A public official who intentionally violates this act shall be personally liable
in a civil action for actual and exemplary damages of not more than $500.00 total,
plus court costs and actual attorney fees to a person or group of persons bringing
the action.
(2) Not more than 1 action under this section shall be brought against a public
official for a single meeting. An action under this section shall be commenced
within 180 days after the date of the violation which gives rise to the cause of
action.
The parties’ agreement contains a provision, at Section 16, whereby the parties to the contract
agreed that “any action, claim or suit against the College arising out of the Chancellor’s
employment or termination of employment . . . must be brought within one (I) year of the event
giving rise to the claims or be forever barred. The Chancellor waives any limitation periods to
the contrary, unless such waiver is prohibited by law.” The parties to the contract being plaintiff
and the Board, this provision is inapplicable to any individual Board member. Plaintiff’s March
21, 2018 complaint with respect to the Board and seeking statutory damages was, however,
timely and defendants do not argue otherwise.
This necessarily brings this Court to the issue of whether plaintiff adequately pleaded a
claim for violation of the OMA. Plaintiff asserted in his complaint that the Board violated the
OMA by going into closed session to purportedly receive a written opinion of counsel, but
instead (or additionally) by discussing plaintiff’s termination, then returning to public session to
vote to approve an unidentified “plan as presented in closed session.”
A public body may meet in a closed session only for specific purposes identified in MCL
15.268. Defendants assert and the minutes of the May 16, 2017 Board meeting indicate that a
motion was made to go into closed session to “discuss labor negotiations and consider a written
opinion of counsel.” These purposes are expressly allowed under MCL 15.268, but “the scope of
the discussion in closed session must legitimately relate to legal matters, and not bargaining,
4
Although the trial court granted summary disposition on this claim under MCR 2.116(C)(8) and
dismissal would be more appropriate under MCR 2.116(C)(4), we may uphold a trial court’s
ruling on appeal when the right result issued. Gleason v Michigan Dept of Transp, 256 Mich
App 1, 3; 662 NW2d 822 (2003).
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economics, or other tangential nonlegal matters.” Booth Newspapers, Inc v Wyoming City
Council, 168 Mich App 459, 468; 425 NW2d 695 (1988). Plaintiff alleged in his complaint that
the allowance for closed sessions in MCL 15.268(a), (c), and (e) did not apply to the termination
of his contract5 and that, even if the Board initially went into closed session for a reason other
than discussing plaintiff’s termination, his termination was clearly and improperly discussed and
voted upon in the closed session.6 Plaintiff also pleaded that the May 16, 2017 vote in closed
session and the May 16, 2017 vote in open session to approve “the plan” violated the OMA
because there was no fair notice of what was being deliberated or voted upon. Because MCL
15.263(2) and (3) require that all decisions and deliberations of a public body “shall” take place
at a meeting open to the public, except as provided in MCL 15.267 and MCL 15.268 and
plaintiff pleaded that the deliberations, vote, and decision concerning the termination of his
contract were not done in open session, plaintiff sufficiently pleaded a claim for violations of the
OMA. This Court reviews a motion for summary disposition premised upon MCR 2.116(C)(8)
by reviewing the pleadings alone, and by accepting all well-pleaded factual allegations in the
pleadings as true, Dalley, 287 Mich App at 304–05. Plaintiff having sufficiently pleaded a
claim for violation of the OMA, plaintiff’s claim for statutory damages arising from the alleged
violation of the OMA was improperly dismissed by the trial court.
While plaintiff also requested injunctive relief on his violation of OMA claim, it is not
clear what action of the Board, specifically, plaintiff seeks to enjoin or how compliance with the
OMA concerning plaintiff’s specific allegations could be compelled. MCL 15.271 provides, in
part:
(1) If a public body is not complying with this act, the attorney general,
prosecuting attorney of the county in which the public body serves, or a person
may commence a civil action to compel compliance or to enjoin further
noncompliance with this act.
Plaintiff’s allegations with respect to violations of the OMA were that the Board impermissibly
discussed and voted upon the termination of his contract in a closed session and then voted in
open session to approve an unidentified “plan.” These actions are specific to plaintiff, have
already taken place and, because the trial court is without jurisdiction to invalidate the Board’s
decision to terminate plaintiff’s contract for a violation of the OMA per MCL 15.270(3), will not
recur. “Merely because a violation of the OMA has occurred does not automatically mean that
an injunction must issue restraining the public body from using the violative procedure in the
future.” Nicholas v Meridian Charter Tp Bd, 239 Mich App 525, 533–34; 609 NW2d 574
(2000), abrogated on other grounds by Speicher, 497 Mich 125. Moreover, “injunctive relief is
5
It has not been argued that any of the remaining subsections in MCL 15.268 apply, nor do they
appear to this Court to apply.
6
Defendants do not dispute that plaintiff’s termination was discussed in the closed session.
Indeed, in the notice of termination letter sent to plaintiff, the Board stated that “[t]he Board
approved the termination of the Contract on May 16, 2017, upon a two-thirds majority vote of
the full Board.”
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an extraordinary remedy that issues only when justice requires, there is no adequate remedy at
law, and there exists a real and imminent danger of irreparable injury” and, where “there is no
reason to believe that a public body will deliberately fail to comply with the OMA in the future,
injunctive relief is unwarranted.” Id. Plaintiff has not pleaded or established entitlement to
injunctive relief for any alleged violation of the OMA.
We affirm the trial court’s grant of summary disposition in defendants’ favor with respect
to plaintiff’s claim for breach of contract and for plaintiff’s claim of violation of OMA to the
extent plaintiff seeks invalidation of the Board’s decision and/or injunctive relief. We reverse
the trial court’s determination that plaintiff failed to state a claim for a violation of the OMA to
the extent that plaintiff seeks statutory damages and remand for proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Karen M. Fort Hood
/s/ Deborah A. Servitto
/s/ Mark T. Boonstra
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