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### STATE OF MICHIGAN

COURT OF APPEALS

CHARTER TOWNSHIP OF ROYAL OAK,

Plaintiff-Appellee, UNPUBLISHED May 18, 2017

v No. 331317 Oakland Circuit Court JANICE BRINKLEY, LC No. 2013-136281-AW

Defendant-Appellant,

and

CHARTER TOWNSHIP OF ROYAL OAK CLERK,

Defendant.

Before: R IORDAN , P.J., and R ONAYNE K RAUSE and S WARTZLE , JJ.

P ER C URIAM

. Defendant Janice Brinkley, the former Royal Oak Township Clerk , appeals as of right the trial court’s order denying her motion for costs and attorney f ees under MCR 2.114(D) and (E). Because we conclude that the trial court’s findings were not cl early erroneous, we affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This matter is before this Court following remand to the trial court by a prior panel. Defendant originally sought costs and attorney fees following a n entry of summary disposition in her favor. Defendant’s motion cont ended that plaintiff’s compl aint was frivolous and that certain identified documents were signed in bad faith. The trial court ruled on the motion but only with regard to whether the complaint was frivolous. On appeal to th is Court, the panel affirmed the trial court’s order with regard to whether the complaint was fr ivolous, but it remanded for the trial court to address “the fact -specific inquiry concerning wh ether the identified documents were signed in bad faith.” Charter Twp of Royal Oak v Brinkley , unpublished opinion per curiam of the Court of Appeals, issued December 3, 2015 (Docket No. 32419 7), p 3 ( Brinkley I ). The instant case concerns the trial court’s denial of defendant’s m otion on remand.-2- II. ANALYSIS

A. STANDARD OF REVIEW

This Court reviews the trial c ourt’s factual findings on a mot ion for sanctions for clear

error. Kaeb v Kaeb , 309 Mich App 556, 564; 873 NW2d 319 (2015); Edge v Edge , 299 Mich App 121, 127; 829 NW2d 276 (2012). “A decision is clearly erro neous where, although there is evidence to support it, the revie wing court is left with a defi nite and firm conviction that a mistake has been made.” Kitchen v Kitchen , 465 Mich 654, 661-662; 641 NW2d 245 (2002).

B. MCR 2.114

Defendant argues that she was entitled to sanctions under MCR 2.114(D) and (E). MCR 2.114(D) provides that a party’s or attorney’s signature on an affidavit, pleading, motion, or other document certifies:

(1) he or she has read the document;

(2) to the best of his or her knowledge, information, and belie f formed after reasonable inquiry, the document is well grounded in fact and i s warranted by existing law or a good-faith argum ent for the extension, modifi cation, or reversal of existing law; and

(3) the document is not interposed for any improper purpose, su ch as to harass or to cause unnecessary delay or needle ss increase in the cost of litigation.

MCR 2.114 imposes “an affirmative duty to conduct a reasonable inquiry into the factual and legal viability” of documents before they are signed. LaRose Market, Inc v Sylvan Ctr, Inc , 209 Mich App 201, 210; 530 NW2d 505 (1995). “The reasonableness of the inquiry is determined by an objective standard and depends on the particular facts an d circumstances of the case.” Id

. In this case, defendant’s alle gations implicate MCR 2.114(D)(2 ) because, although defendant argues that certain ide ntified documents were signed in “bad faith,” the crux of her allegations is that those documents were not well grounded in f act and/or were not warranted by existing law. “The filing of a signed document that is not wel l grounded in fact and law subjects the filer to sanctions pursuant to MCR 2.114(E).” Guerrero v Smith , 280 Mich App 647, 678; 761 NW2d 723 (2008). The imposition of sanctions for a violati on of MCR 2.114(D) is mandatory. Kaeb , 309 Mich App at 565.

This case originally arose out of plaintiff’s complaint allegi ng that defendant, in her role as township clerk, failed to perform a number of her duties and /or willfully ignored some of her duties. Defendant’s claims implicate a number of documents fil ed by plaintiff, including: (1) claims related to statements made in Township Supervisor Donna Squalls’s September 7, 2013 affidavit attached to the complaint; (2) claims related to plai ntiff’s complaint; (3) claims related to plaintiff’s April 16, 2014 Motion to Show Cause; and (4) cla ims related to plaintiff’s response to defendant’s motion for summary disposition. In addition, de fendant argues for the first time on appeal that plaintiff should ha ve been sanctioned for failin g to dismiss the action.-3- C. CLAIMS PERTAINING TO SQUALLS’S AFFIDAVIT

1. EVIP FUNDING AND REPORTS TO TREASURY

Defendant first argues that Squalls’s affidavit was signed in bad faith because of false allegations contained therein c oncerning an application that de fendant made to the Department of Treasury for $50,000 in Economic Vitality Incentive Program (EV IP) funding in February 2013. Defendant identified ¶ ¶ 3-4 of the affidavit as the allegedly false statements. Those paragraphs provide:

3. The Michigan Department of Treasury requires monthly financ ial reports to be submitted and failure to do so accurately and timely results in loss of revenue funds and causes the Township to face emergency financial manag ement.

4. As part of her statutory dutie s, the Township Clerk was to properly submit these monthly reports in accordance with the State EVIP guideli nes and has to date failed to do so.

Defendant argues that Squalls fal sely asserted that defendant’s late filing of financial reports with the Department of Treasury was the cause of plaintiff’s lo ss of $50,000 in EVIP funding. According to defendant, the EVIP application was due on Februar y 1, 2013, and Squalls knew that the Department of Treasury did not require the submission of monthly reports until April 2013. Hence, according to defendant, any assertion by Squalls that the failure to submit monthly reports to the Department of Tr easury caused plaintiff to lose EVIP funding was false.

We decline to find clear error on this claim. Defendant admit ted that she failed to timely attach certain unidentified docum ents to the EVIP application a t issue, thereby resulting in the loss of $50,000 in funds. At most, de fendant is arguing that p laintiff potentially m isidentified the documents she failed to submit in her application for EVIP fund ing. This does not demonstrate clear error by the trial court.

2. SHREDDING PUBLIC DOCUMENTS

Next, defendant takes issue with Squalls’s statement in ¶ 7 o f her affidavit that defendant was “shredding public records without the knowledge of the Boar d.” According to defendant, this statement was false because the Township Board knew, by wa y of a resolution it passed, that defendant would be shredding documents. And defendant notes th at Squalls admitted in her deposition that she did not know whether the documents were req uired to be kept by law. According to defendant, this admission shows that ¶ 7 was not w ell grounded in fact and was made in bad faith.

We decline to find clear error on the record before us. Throu ghout the trial court proceedings, defendant freely admitted that she shredded townsh ip documents. She only disputed whether she was required by law to keep the documents. Squalls’s affidavit, meanwhile, merely states that, instead of attending a township meeting, “it was discovered the Township Clerk was at the Township shredding public records wit hout the knowledge of the Board.” Squalls did not allege that defendant shredded documen ts that were required to be kept.-4- She merely asserted that defendant shredded documents without t he knowledge of the Township Board. In her deposition, Squalls testified that she knew defe ndant shredded township documents, but she testified that she did not know the substanc e of the documents or whether defendant shredded anything she should have kept pursuant to re cord retention policies. In other words, Squalls testified that she knew defendant shredded docum ents, but Squalls, who was a Board member, did not know what those documents were. In light of this testimony, we are not left with a definite and firm conviction that the trial court m ade a mistake. Indeed, this testimony supports the notion that def endant shredded at least some documents without the Board’s knowledge.

3. ACCESS TO THE FUND BAL ANCE SOFTWARE PROGRAM

Next, defendant argues that Squa lls made false assertions in h er affidavit with regard to the issue of “read access” and “write access” to the township’s “Fund Balance” software program. Defendant argues that Squalls’s affidavit falsely cla imed that defendant “failed to give [Squalls] read and write access to all of Fund Balance contrary to her authority and a resolution passed by the Township Board allowing such access.” However, S qualls’s affidavit does not state that defendant acted cont rary to the resolution. Rather, Squalls’s affidavit simply states that defendant denied Squalls access and that the Township Board passed a resolution regarding Fund Balance access. There does not appear to be any dispute t hat defendant blocked some access to Fund Balance before the resolution was passed. Thus, the record before this Court does not support the conclusion that th e trial court clearly erred.

4. DIRECTIONS TO THE TOWNSHIP DEPUTY CLERK

Defendant next argues that Squa lls falsely asserted in ¶ 10 o f her affidavit that defendant directed the deputy clerk not to act in her absence. Paragraph 10 of the affidavit provides that “the Township Clerk’s deputy has been directed not to comply wi th her statutory duties to act in the stead of the Township Clerk . . . .” Defendant cites an af fidavit from a former deputy clerk, Ida Reynolds, who averred that defendant never instructed her n ot to act. Citing Reynolds’s affidavit, defendant argues that Squalls’s assertions to the co ntrary were false and that they were made in bad faith. Defendant also argues that Squalls admitted she could not recall any instance when the deputy clerk refused to act.

On the record before this Cour t, defendant cannot show clear e rror. When asked about ¶ 10 of her affidavit, Squalls tes tified at her deposition that :
There was one time—and I can’t recall what it was now—but [the deputy clerk] said, “[defendant] told me not to do”—I can’t recall what it wa s, but [the deputy clerk] did tell me to my face that [defendant] told her not to do something that I asked her. I asked for information and “[defendant] told me no t to give it to”—or something.

Squalls also testified that she could not recall the specific s ubject matter of the refusal. Contrary to defendant’s suggestions on appeal, Squalls did not testify i n her deposition that she did not know whether the averment was true ; rather, she testified that she could not recall the subject of the refusal to act. In sum, other than Reynolds’s denial, defe ndant has not presented any-5- evidence suggesting that Squalls knew her averment in ¶ 10 was false. The conflicting accounts of Squalls and Reynolds do not demonstrate a clearly erroneous factual finding by the trial court.

5. APPOINTMENT OF TRUSTEE AS ACTING CLERK

The final statement with which defendant takes issue from Squa lls’s affidavit is the averment in ¶ 11 in which Squalls stated that “unl ess Plaintiff is permitted to appoint a Trustee to act as the Township Clerk in the interim, the Township will be unable to function and operate.” Defendant argues that there is no evidence that she failed to p erform her duties as clerk. Moreover, she argues that there is no evidence that the deputy clerk refused to act; thus, according to defendant, even if she failed to perform her dutie s as clerk, the township could still function without the appointment of a trustee as an interim cle rk.

The record before this Court does not demonstrate clear error. As it concerns defendant and her refusal to take certain actions, the record reveals tha t defendant admittedly failed to sign certain township resolutions that she deemed were not ready for implementation for one reason or another. Squalls’s affidavit expressly mentioned defendant’ s failure to sign resolutions as one of the reasons why plaintiff requested the appointment of an in terim clerk. Moreover, defendant admittedly failed to attach documentation to an application for EVIP funding, and, as noted above, Squalls testified that she had at least some reason to b elieve that defendant had instructed the deputy clerk not to act.

D. CLAIMS PERTAINING TO PLAINTIFF’S COMPLAINT

According to defendant, plaintiff’s complaint was not well gro unded in fact because “[t]he record is clearly contrary ” to certain allegations set f orth in the complaint. Defendant lists six allegations, without expressly citing the complaint, and co ncludes, in cursory fashion, that plaintiff knew or should have know n that the allegations were f alse. Given defendant’s cursory treatment of her claims, we consider the claims to be abandoned . See Peterson Novelties, Inc v City of Berkley , 259 Mich App 1, 14; 672 NW2d 351 (2003) (“An appellant’s fail ure to properly address the merits of his asser tion of error constitutes abando nment of the issue.”). Moreover, on our review of the record, we are not left with a definite and f irm conviction that the trial court’s factual finding was mistaken.

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

Defendant next argues that pl aintiff’s April 16, 2014 show-cau se motion was signed in bad faith because it advocated a position that was not warrante d by existing law. This motion concerned defendant’s alleged fa ilure to call two special meeti ngs that Squalls h ad requested. Squalls requested the first special meeting with approximately 22 hours’ notice, rather than the 24 hours required by MCL 42.7. Squalls requested the second sp ecial meeting via text message, which the trial court in this case found did not satisfy MCL 42 .7’s requirement that such requests be made “in writing.” According to defendant, had plaintiff’s attorney reviewed MCL 42.7 before filing the show-cause motion, he would have realized tha t the claims made therein were not warranted by existing law.

As it concerns special meetings of a township board, MCL 42.7( 2)-(3) provide:-6- (2) A special meeting of the tow nship board shall be called by the township clerk pursuant to subsection (3) on the written request of the supervisor or of 2 members of the township board and on at least 24 hours’ wr itten notice to each member of the township board . The notice shall designate the time, place, and purpose of the meeting and shall be served personally or left a t the member’s usual place of residence by the to wnship clerk or someone desig nated by the township clerk.

(3) The business that the board may perform shall be conducted at a public meeting of the board held in compliance with the open meetings act, Act No. 267 of the Public Acts of 1976, being sections 15.261 to 15.275 of the Michigan Compiled Laws. Public notice of the time, date, and place of t he meeting shall be given in the manner required by Act No. 267 of the Public Acts of 1976. [Emphasis added.]

Defendant is correct that a township meeting “shall” be called on 24 hours’ notice to the township board members, though the provision is silent on wheth er a member can waive the requirement that advanced notice be given to him or her. That w aiver may be permitted is suggested by the fact that public notice of a special meeting u nder the open meetings act must be posted only “at least 18 hours before the meeting.” MCL 15.265 (4). Given this shorter requirement for public notice, it is arguable that the 24-hour requirement could be waived, and that a valid meeting could be held as long as the 18-hour publi c notice requirement of the open meetings act was met. Here, the 22-hour notice given by Squall s fits within that timeframe. That a legal position does not prevail does not mean that the a rgument was not warranted by existing law. 1 Sprenger v Bickle , 307 Mich App 411, 424; 861 NW2d 52 (2014).

As it concerns the special mee ting that Squalls requested by t ext message, MCL 42.7(2) provides that a meeting request must be “in writing,” without d efining the phrase “in writing.” Neither party has directed this Court’s attention to binding au thority on the interpretation of the phrase “in writing” as it is used in this statute. Thus, there could be an argument made that a text message would qualify as written notice. In fact, the prior pa nel in this case, in addressing arguments raised by plaintiff’s cr oss-appeal, expressly decline d to resolve the question of whether a text message constituted written notice under MCL 42. 7(2). Brinkley I , unpub op at 7- 8. In doing so, the panel noted that there was a “lack of clar ity concerning where emerging technology such as text messages fits into existing statutory d efinitions concerning ‘written requests’ or ‘writings.’ ” Id . The concern identified by the prior panel highlights that the re is arguable merit to the claim that a text message would satisfy t he “in writing” requirement of MCL 42.7(2). That the trial court denied plaintiff’s motion to hold defendant in contempt for failing to call a meeting pursuant to a text message request do es not mean that plaintiff’s motion was not warranted by existing law. See Sprenger , 307 Mich App at 424.

1 Because the question of whether a member can waive the right t o 24-hour advanced notice need not be answered for proper resol ution of this appeal, we will d ecline to address it further.-7- F. CLAIM PERTAINING TO PLAINTI FF’S RESPONSE TO SUMMARY DISPOSI TION

Defendant next argues that pla intiff’s assertion concerning de fendant’s adherence to a township resolution regarding mail protocol in its response to her motion for summary disposition was made in bad faith . As context for this claim, trial counsel for plaintiff, who also served as plaintiff’s general c ounsel, had previously provided an opinion to Squalls and other board members in March 2013 regarding “the Township Clerk’s leg al duties as they relate to the receiving and opening of mail addressed to the Charter Township of Royal Oak and mail addressed to individuals at the Township’s business address.” After reviewing pertinent authorities, counsel opined that t he township clerk was “legall y authorized to accept and open all mail addressed to the Charter Tow nship of Royal Oak and any mai l addressed to individuals at the Township’s business address.” Shortly after receiving coun sel’s letter, the Township Board passed a resolution requiring de fendant to refrain from opening mail addressed “to a specific person or office other than the Township.” In an October 30, 2 013 deposition, defendant testified that she was aware of the resolution, but she neverth eless opened all mail she received “because it’s my statutory duty.” She testified that she would open all mail that was delivered to the township offices, regardless of whether it was addressed to another individual and regardless of whether it was marked personal or confidential. She testifi ed that she would not follow the resolution regarding mail protocol.

As it concerns defendant’s instant claims, she argues that, gi ven counsel’s opinion, as well as MCL 41.65 and this Court’s decision in McKim v Green Oak Twp Bd , 158 Mich App 200; 404 NW2d 658 (1987), it “was bad faith” for plaintiff to a llege that defendant breached her duties by violating the township resolution that was “clearly c ontrary” to the March 2013 letter from counsel.

In pertinent part, MCL 41.65 provi des that “[t]he township cle rk of each township shall have custody of all the records, books, and papers of the towns hip, when no other provision for custody is made by law.” In McKim , 158 Mich App at 205, this C ourt held that the term “papers” as used in that section includes mail delivered to the township. “Hence, it seems clear that MCL 41.65 . . . bestows a township clerk with the responsi bility to exercise control over all township papers, including mail and bills, unless otherwise pro vided for by law.” Id . At issue in McKim was whether a township could enact a resolution permitting the township secretary, rather than the clerk, to receive all incoming mail. Id . at 201-202. This Court held that a resolution bypassing the township clerk entirely deprived the c lerk of his or her duty under MCL 41.65 to have “custody of all . . . pa pers of the township . . . .” Id . at 205.

Turning to the instant case, the trial court did not clearly e rr in finding that the accusation made in plaintiff’s response re garding defendant’s lack of comp liance with the mail protocol ordinance was not made in bad faith. At the outset, regardless of any opinion given by the township’s general counsel, the Township Board passed a resolut ion requiring defendant not to open mail she received if it was addressed to someone else, and defendant openly defied that resolution. As plaintiff argues, the township has an interest in seeing that resolutions passed by its board are followed. Moreover, the law cited by defendant i s not as clear as defendant represents it to be. As it concerns the instant case, neither McKim nor MCL 41.65 expressly gives a township clerk authority to open all mail that is deliv ered to the township. Rather, the authorities give a clerk “custody” over the mail. It is not ap parent that “custody” means a clerk-8- can open mail addressed to anyone, regardless of the subject of the mail. Furthermore, there is little caselaw interpreting MCL 41.65, and the decision in McKim could be considered nonbinding because it was issued before November 1, 1990. See MCR 7.215(J)(1). Contrary to defendant’s assertions, plainti ff’s position regarding mail pro tocol was at least arguably warranted by existing law, and de fendant fails to establish cle ar error.

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

For her final claim, defendant argues that plaintiff should be sanctioned “pursuant to MCR 2.114 for failing to dismiss” when it knew it had no case a gainst defendant. Defendant failed to preserve this claim for appellate review because she did not raise it before the trial court. See Hines v Volkswagen of America, Inc , 265 Mich App 432, 443; 695 NW2d 84 (2005). We decline to address this issue raised for the first time on a ppeal. City of Fraser v Almeda Univ , 314 Mich App 79, 104; 886 NW2d 730 (2016). Moreover, we have reviewed the claim and found it to be without merit.

III. CONCLUSION

Defendant failed to show that the trial court’s factual findin gs were clearly erroneous. Accordingly, we affirm the tri al court’s order denying defendan t’s motion for costs and attorney fees. 2

Affirmed.

/s/ Michael J. Riordan /s/ Amy Ronayne Krause /s/ Brock A. Swartzle

2 We note that, in passing, plaintiff appears to argue that defe ndant should be sanctioned for filing a vexatious appeal. Given the cursory attention plainti ff gives to this matter, we find it to be abandoned. See Peterson Novelties , 259 Mich App at 14. Moreover, because this cursory request is made in plaintiff’s br ief, rather than in a separate motion, “the request is ineffectual” and should not be considered at this time. Fette v Peters Constr Co , 310 Mich App 535, 553; 871 NW2d 877 (2015).