                          STATE OF MICHIGAN

                            COURT OF APPEALS



CARL PETERSON,                                                       UNPUBLISHED
                                                                     May 11, 2017
               Plaintiff-Appellant,

v                                                                    No. 329551
                                                                     Wayne Circuit Court
CITY OF RIVER ROUGE, SUSAN JOSEPH,                                   LC No. 14-011738-CK
RIVER ROUGE PENSION BOARD, JEFF
BOWDLER, MARK HOGAN, ROBERT
FOLLBAUM, DANNY DOTSON, MARK
PRUNEAU, DENNY CORA, and JOSEPH
MCCARROLL,

               Defendants-Appellees.


Before: TALBOT, C.J., and K. F. KELLY and BORRELLO, JJ.

PER CURIAM.

        Plaintiff filed this action against the city of River Rouge (the “City”), its Deputy Clerk
Susan Joseph, the River Rouge Pension Board (the “Board”), board members Jeff Bowdler,
Mark Hogan, Robert Follbaum, Danny Dotson, Mark Pruneau, Denny Cora, and the Board’s
legal counsel, Joseph McCarroll, after the Board decided in June 2013 to retroactively convert
plaintiff’s duty disability pension to a regular retirement pension, effective on his 50th birthday,
October 7, 2007. Plaintiff’s complaint included claims for breach of contract, superintending
control, violation of the Whistleblowers Protection Act (“WPA”), MCL 15.361 et seq., tortious
interference and civil conspiracy.1 On September 16, 2015, the trial court granted defendants’
motions for summary disposition and dismissed plaintiff’s claims. For the reasons set forth in
this opinion, we affirm.

                                       A. BACKGROUND

       Plaintiff was formerly employed by the City as a police officer. In 1994, the City
approved plaintiff’s duty disability pension. The resolution granting him duty disability


1
 Plaintiff also brought a claim under the Michigan Freedom of Information Act, but that claim
was dismissed by stipulation and is not at issue on appeal.


                                                -1-
retirement stated that the pension would convert to a reduced regular retirement pension when he
reached “voluntary retirement age” pursuant to the collective bargaining agreement (“CBA”).2
The City Charter provides that voluntary retirement age is 55, but the CBA states that a 10-year
vested pension becomes payable when the member attains the age of 50. A retirement handbook
distributed to members states that a member becomes eligible for retirement at age 50, with 10
years of service. The same handbook states that a duty disability pension converts to a regular
retirement pension when the recipient reaches the age of 55. At the time of plaintiff’s duty
disability retirement, the City’s actuary calculated plaintiff’s pension payment based on
conversion at age 55.

        In 2003, plaintiff inquired about the conversion of his pension from duty disability to
regular retirement. Defendant McCarroll, the Board’s legal counsel, responded that the
conversion would take place on plaintiff’s 50th birthday. The Board did not thereafter convert
plaintiff’s pension from duty disability to a regular pension when he reached age of 50 in
October 2007. Defendants maintain that this omission was an oversight that came to the Board’s
attention in 2013. In April 2013, the Board voted against recalculating plaintiff’s pension based
on conversion at age 50. However, the Board reconsidered and, in June 2013, voted for the
retroactive conversion. Plaintiff contends that the retirement handbook states the correct
conversion age of 55. He alleges that McCarroll, motivated by personal animus against plaintiff,
instigated the Board to deprive him of his right to receive the duty disability pension until the age
of 55. McCarroll’s alleged animus against plaintiff stems from an incident in 1992 or 1993,
when plaintiff made a traffic stop and determined that McCarroll was driving while intoxicated.
Plaintiff also alleges that the Board voted to convert his pension at age 50 in retaliation for an
incident in 1994, when he informed the mayor that members of the police and fire departments
were responsible for the death of an inmate in the city’s lockup facility.

        Plaintiff filed this lawsuit against defendants. His claims for tortious interference and
civil conspiracy apply only to defendants Joseph and McCarroll. He did not specify the
defendants for his claims of breach of contract, superintending control, and violation of the
WPA.

        The City and Joseph filed a joint motion for summary disposition pursuant to MCL
2.116(C)(7) (statute of limitations for the WPA claim and governmental immunity for the tort
claims against Joseph), (C)(8), and (C)(10). The City argued that the CBA controlled the issue
of voluntary retirement age for purposes of determining the age at which plaintiff’s duty
disability pension converted to a regular pension, and that the relevant age under the CBA was
age 50, notwithstanding conflicting provisions in the City Charter and the retirement handbook.
The City therefore argued that plaintiff was not entitled to relief from the Board’s decision to
recalculate plaintiff’s pension based on conversion at age 50, but if he were, the only appropriate
relief would be an order of superintending control against the Board, not the City. The City also




2
  The parties agree that the CBA for the period July 1, 1991, through June 30, 1994, governs
plaintiff’s duty disability retirement.


                                                -2-
argued that plaintiff’s tort claims against Joseph were without merit because Joseph committed
no wrongful acts.

        The Board, McCarroll, and the individual Board members (collectively the “Board
defendants”) also jointly moved for summary disposition under MCR 2.116(C)(7), (8), and (10).
The Board defendants echoed the arguments asserted by the City and Joseph, and also argued
that the Board members were entitled to quasi-judicial governmental immunity. The trial court
granted defendants’ motions.

        Plaintiff moved for imposition of a sanction of default against defendants. Plaintiff
contended that some e-mails were not included among the documents produced by defendants in
discovery. Plaintiff also requested production of audio recordings of Board meetings.
Defendants responded that the audio recordings were not kept after the minutes of the meetings
were transcribed and approved, in accordance with guidelines set by the Michigan Municipal
League. Plaintiff alleged that defendants destroyed evidence knowing that it would be relevant
to the impending litigation. The trial court denied plaintiff’s motion. This appeal ensued.

                                B. STANDARDS OF REVIEW

        A trial court’s decision on a motion for summary disposition is reviewed de novo on
appeal. Rusha v Dep’t of Corrections, 307 Mich App 300, 304; 859 NW2d 735 (2014). The trial
court dismissed the WPA claim pursuant to MCR 2.116(C)(7). Summary disposition is proper
under MCR 2.116(C)(7) when there is no factual dispute and plaintiff’s claim is barred by an
applicable statute of limitations. Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d
678 (2001). As to the remaining claims, the court considered evidence outside the pleadings;
therefore, we construe the motions as having been granted pursuant to MCR 2.116(C)(10).
Cuddington v United Health Servs., Inc., 298 Mich App 264, 270-271; 826 NW2d 519 (2012).
“In reviewing a motion brought under MCR 2.116(C)(10), we review the evidence submitted by
the parties in a light most favorable to the nonmoving party to determine whether there is a
genuine issue regarding any material fact.” Id.

                                         C. ANALYSIS

        Plaintiff alleged five distinct claims in his complaint: (1) breach of contract, (2)
superintending control, (3) violation of the WPA, (4) tortious interference, (5) civil conspiracy.
Plaintiff alleged some claims only against Joseph and McCarroll—i.e. tortious interference and
civil conspiracy—but he did not delineate if the other claims applied to specific defendants. We
proceed by addressing each claim in turn without delineating whether the claims applied to
specific defendants unless otherwise noted.3

                                 I. BREACH OF CONTRACT


3
  In his second question presented plaintiff notes that the court erred in granting summary
disposition on Count VI as to defendants the Board and McCarroll. However, Count VI was the
FOIA claim that the parties stipulated to dismiss.


                                               -3-
       Plaintiff argues that the trial court erred in granting summary disposition on his breach of
contract claim.

        Plaintiff advances numerous arguments as to why the Board erred in determining that the
voluntary retirement age was age 50. However, resolution of all of plaintiff’s arguments turns on
whether the City Charter, the CBA, or the retirement handbook controls when plaintiff’s duty
disability retirement converts to a regular retirement based on the “voluntary retirement age.”
Clearly, the retirement handbook does not control because it expressly states that the Charter and
the CBA “control and govern the rights and benefits under the Retirement System.” It further
states that if the Charter conflicts with the CBA, the CBA controls. The handbook also
contradicts itself with respect to voluntary retirement age. This leaves a conflict between the
City Charter, article 11, § 184(t), and the CBA, article XXI, § 2(B)(6).

        The city council’s resolution approving plaintiff’s duty disability retirement provided that
his status would be “periodically re-examined . . . until he reaches (a) voluntary retirement age . .
. in the applicable collective bargaining agreement which specifies the date he is placed in a
regular retirement.” It is well settled in Michigan that: “If there is a conflict between PERA
[Public Employment Relations Act, MCL 423.201 et seq] and another statute, charter provision
or constitutional provision affecting mandatory bargaining subjects, the provisions of PERA and
Const 1963, art 4, § 48, must dominate . . . .” AFSCME Council 25 v Wayne Co, 292 Mich App
68, 86; 811 NW2d 4 (2011). Additionally, “the duty ‘to perform in accordance with the terms of
a collective bargaining agreement prevails over conflicting (charter) provisions.” Local 1383
Int’l Ass’n of Fire Fighters v City of Warren, 411 Mich 642, 662; 311 NW2d 702 (1981),
quoting Pontiac Police Officers Ass’n v City of Pontiac (After Remand), 397 Mich 674, 677, 685;
246 NW2d 831 (1976).

        Under established precedent, where the city charter and CBA conflict with respect to a
mandatory subject of bargaining under PERA, the CBA prevails. Retirement benefits are a
mandatory subject of bargaining. Detroit Police Officers Ass’n v City of Detroit, 391 Mich 44,
63-64; 214 NW2d 803 (1974). Accordingly, the CBA prevails over the City Charter. The
charter states that a member receives a duty disability pension until he reaches “voluntary
retirement age.” Article 11, § 184(t) of the City Charter defines “voluntary retirement age” as
age 55 “in the case of a new member” and, “[i]n the case of an original member . . . [as] the age
at which he acquires 25 years of credited service, or age 55 years, whichever is the younger age.”
Article XXI, § 2(B)(6), of the CBA states that the retirement pension is payable “on ten (10) year
vesting is payable after age fifty (50) . . . .” Accordingly, voluntary retirement age is 50 years,
which is therefore the age at which the duty disability pension converts to a regular retirement
pension. Hence, in this matter, plaintiff’s pension converted on his 50th birthday, October 7,
2007. The Board’s adjustment of plaintiff’s pension was therefore supported by the evidence,
was not contrary to law, was not arbitrary and capricious, and was not an abuse of discretion.
Plaintiff’s breach of contract claim therefore failed as a matter of law and summary disposition
was proper.

       Plaintiff’s argument that the City alone determines eligibility for pension benefits is
erroneously premised on his position that the City had discretion to determine his eligibility on
an ad hoc basis. Plaintiff argues that the actuarial statement, which calculated his duty disability
pension based on conversion to a retirement pension at age 55, formed the basis of his contract

                                                -4-
with the City. Plaintiff emphasizes that the Michigan Constitution declares that public employee
pensions are a matter of contract. Const 1963, art IX, § 24, provides that “[t]he accrued financial
benefits of each pension plan and retirement system of the state and its political subdivisions
shall be a contractual obligation thereof which shall not be diminished or impaired thereby.”
However, this does not establish that the City had a contractual obligation to set age 55 as the
date of converting plaintiff’s duty disability pension to a retirement pension. The actuarial
statement does not establish a contractual obligation. “A valid contract requires five elements:
(1) parties competent to contract, (2) a proper subject matter, (3) legal consideration, (4)
mutuality of agreement, and (5) mutuality of obligation.” AFT Michigan v Michigan, 497 Mich
197, 235; 866 NW2d 782 (2015) (citations omitted). “Contracts necessarily contain promises: a
contract may consist of a mutual exchange of promises . . . or the performance of a service in
exchange for a promise.” Id. at 235-236. Id. (citations omitted). The actuarial calculation is not
a contract because it does not involve an exchange of promises or an exchange of performance
for promise. Plaintiff had no obligations under the actuarial report. Plaintiff’s entitlement to
pension benefits derived from his employment contract, in which he performed the services of a
police officer in exchange for compensation, including retirement benefits, pursuant to the CBA.

        Plaintiff also argues that the handbook was written after the CBA was ratified; therefore,
the authors of the handbook knew that the CBA set voluntary retirement age at 50. Plaintiff
contends that the authors must have understood that the CBA did not change the voluntary
retirement age as it pertained to officers who retired on a duty disability pension. However, the
handbook advises members to familiarize themselves “with the terms of your collective
bargaining agreement which will control in the event of any conflict with the information
presented in this handbook.” The handbook also advises that the CBA controls if it conflicts
with the City Charter. Plaintiff suggests that the correct conversion age is a question of fact for
the jury. We disagree because the CBA controls as a matter of law.4

         Plaintiff argues that the Board did not have authority to make the determination regarding
age and retirement. However, as discussed above, the CBA governed the voluntary age of
retirement; thus, the Board’s discretion was irrelevant. Moreover, authority to apply the terms of
the CBA fell within the broad authority delegated to the Board under the City Charter to manage
the retirement system.

       Similarly, plaintiff’s argument that the Board violated its own procedural rules lacks
merit. Plaintiff cites Robert’s Rules of Order for the rule that “[a]n affirmative vote in the nature
of a contract when the party to the contract has been notified of the outcome” is not subject to
reconsideration. Plaintiff and the Board were not parties to a contractual relationship. The



4
  In a similar argument plaintiff argues that a “Summary Plan Description (SPD)” controls over
the actual retirement plan. To the extent that plaintiff argues that the handbook controls over the
CBA, this argument is devoid of merit. As discussed above, under PERA, the CBA is
controlling. See AFSCME Council 25, 292 Mich App at 86. Furthermore, the handbook
explicitly states that members should familiarize themselves with the CBA and that the CBA
controls if there are any discrepancies.


                                                -5-
Board’s decision determined plaintiff’s contractual pension rights in accordance with the CBA’s
provision on voluntary retirement age. Robert’s Rules of Order does not invalidate the Board’s
actions, and in any event, the Board’s general procedural did not take precedence over the CBA.

        In sum, pursuant to established case law, the CBA governed the resolution of when
defendant’s retirement converted to a standard retirement. The Board did not err in applying the
terms of the CBA. Therefore, summary disposition as to plaintiff’s breach of contract claim was
proper.

                              II. SUPERINTENDING CONTROL

       Plaintiff argues that the trial court should have granted his claim for a writ of
superintending control against the City. This argument fails as a matter of law.

        “A superintending control order enforces the superintending control power of a court
over lower courts or tribunals.” MCR 3.302(A). “If another adequate remedy is available to the
party seeking the order, a complaint for superintending control may not be filed.” MCR
3.302(B). To invoke a court’s power of superintending control, a plaintiff generally must
establish both the lack of an adequate legal remedy and the failure of the lower court to perform
a clear legal duty. Recorder’s Court Bar Ass’n v Wayne Circuit Court, 443 Mich 110, 134; 503
NW2d 885 (1993). Here, the City did not have “a clear legal duty” to prevent conversion of
plaintiff’s pension until he reached age 55. Plaintiff contends that this remedy is appropriate
because the City Charter does not confer on the Board the authority to set age and service
requirements for retirement pensions or for conversion of duty disability pensions to retirement
pensions. As discussed previously, however, these requirements are a mandatory subject of
bargaining under PERA, and are therefore settled by the CBA, which sets the voluntary
retirement age as 50. Plaintiff has failed to cite any case law which allows this Court to set
aside, nullify or ignore the terms and conditions of a valid CBA. Accordingly, the trial court did
not err in granting the summary disposition on the claim for superintending control.

                                            III. WPA

       The trial court dismissed plaintiff’s WPA claims under MCR 2.116(C)(7), because it was
not timely filed within the statutory limitations period under the WPA.

         The WPA, MCL 15.362, precludes an employer from taking adverse action against an
employee based on the employee’s report of a violation of a law or regulation to a public body.
“The elements of a cause of action under the WPA are (1) the plaintiff was engaged in a
protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against,
and (3) a causal connection exists between the protected activity and the discharge or adverse
employment action.” Truel v City of Dearborn, 291 Mich App 125, 138; 804 NW2d 744 (2010).
A person claiming violation of the WPA “may bring a civil action for appropriate injunctive
relief, or actual damages, or both within 90 days after the occurrence of the alleged violation of
this act.” MCL 15.363(1).

        Here, in addition to failing to articulate the protected activity that he was engaged in the
alleged wrongful conduct in this case involved the Board’s determination that plaintiff’s
disability pension converted at age 50, which occurred on November June 20, 2013. Plaintiff
                                                -6-
filed his complaint on September 12, 2014, which was outside the 90-day WPA limitations
period. MCL 15.363(1). Moreover, there was insufficient evidence to create a genuine issue of
material fact regarding a causal connection between plaintiff’s conduct in the early 1990’s and
the Board’s application of the CBA in 2013. Accordingly, the trial court did not err in
dismissing plaintiff’s WPA claims.

                   IV. TORTIOUS INTERFERENCE/CIVIL CONSPIRACY

        Plaintiff argues that the trial court erred in granting summary disposition on his tortious
interference5 claim.

        “In Michigan, tortious interference with a contract or contractual relations is a cause of
action distinct from tortious interference with a business relationship or expectancy.” Health
Call of Detroit v Atrium Home & Health Care Servs, Inc, 268 Mich App 83, 89; 706 NW2d 843
(2005). “The elements of tortious interference with a contract are (1) the existence of a contract,
(2) a breach of the contract, and (3) an unjustified instigation of the breach by the defendant.”
Id. at 89-90. Moreover, “[t]o maintain a cause of action for tortious interference, the plaintiff
must establish that the defendant was a ‘third party to the contract rather than an agent of one of
the parties acting within the scope of its authority as an agent.” Lawsuit Fin, LLC v Curry, 261
Mich App 579, 593; 683 NW2d 233 (2004).

         In this case, plaintiff’s tortious interference claim failed. As discussed above, plaintiff’s
rights to pension benefits was governed by the CBA and under the terms of the CBA, plaintiff’s
duty disability retirement converted at age 50. Accordingly, there was no evidence to show
breach of contract and plaintiff’s tortious interference claims failed as a matter of law. Health
Call of Detroit, 268 Mich App at 89. Moreover, none of the named defendants were third
parties, but instead were agents of the City. Accordingly, the tortious interference claims failed
for this reason as well. See Curry, 261 Mich App at 593.

        Similarly, plaintiff’s civil conspiracy claims failed as a matter of law. “A civil
conspiracy is 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.”
Admiral Ins Co v Columbia Cas Ins Co, 194 Mich App 300, 313; 486 NW2d 351 (1992). If a
plaintiff fails to establish any tortious conduct, the plaintiff’s conspiracy action must also fail.
Id. In this case, there was no evidence to support that any of the named defendants engaged in
unlawful or tortious conduct given that the Board’s decision was grounded in the terms of the
CBA. Accordingly, plaintiff’s civil conspiracy claims failed as a matter of law.


5
  Plaintiff did not distinguish whether his claim was for tortious interference with a contract or
with a business relationship; however, because he did not have a business relationship with any
of the parties we address it as a contractual claim. Even if plaintiff did allege a business
relationship claim, that claim would fail where there was no evidence that any defendant
committed a per se wrongful or unlawful act with the purpose of interfering in the business
relationship of another. See Health Call of Detroit v Atrium Home & Health Care Servs, Inc,
268 Mich App 83, 89; 706 NW2d 843 (2005).


                                                 -7-
       In sum, the CBA governed in this case and the CBA provided that the voluntary
retirement age was 50. Accordingly, all of plaintiff’s substantive claims failed as a matter of law
and we need not address plaintiff’s ancillary arguments that the trial court erred in determining
the scope of the review of the Board’s decision, that the Board is not a real party in interest, and
that governmental immunity does not apply to bar some of his claims.

                                         V. SANCTIONS

        Plaintiff argues that the trial court erred in denying his motion for entry of a default
against defendants as a sanction for destroying evidence. The trial court’s decision on a motion
to sanction a party for spoliation of evidence is reviewed for an abuse of discretion. Brenner v
Kolk, 226 Mich App 149, 160-161; 573 NW2d 65 (1997).

         “A trial court has the authority, derived from its inherent powers, to sanction a party for
failing to preserve evidence that it knows or should know is relevant before litigation is
commenced.” Bloemendaal v Town & Country Sports Ctr, Inc, 255 Mich App 207, 211; 659
NW2d 684 (2002). “Even when an action had not been commenced and there is only a potential
for litigation, the litigant is under a duty to preserve evidence that it knows or reasonably should
know is relevant to the action.” Id. at 212 (citation and quotation marks omitted). When
determining an appropriate sanction, the trial court must tailor the sanction to the misconduct.
Brenner, 226 Mich App at 163-164. A “trial court properly exercises its discretion when it
carefully fashions a sanction that denies the party the fruits of the party’s misconduct, but that
does not interfere with the party’s right to produce other relevant evidence.” Bloemendaal, 255
Mich App at 212. Sanctions may include dismissal of the action (for extreme cases), “exclusion
of evidence that unfairly prejudices the other party[,] or an instruction to the jury that it may
draw an inference adverse to the culpable party from the absence of the evidence.” Brenner, 226
Mich App at 161. Default is analogous to dismissal where the plaintiff seeks a sanction against
the defendant.

        Plaintiff alleged that defendants deliberately destroyed evidence despite knowing that
plaintiff intended to initiate litigation. Plaintiff identified audio recordings of meetings, e-mails
between Joseph and Comerica dated March 13 and March 14, and other e-mails that might have
come within plaintiff’s discovery request. Plaintiff emphasizes that his counsel put Joseph on
notice of impending litigation in an e-mail sent on January 17, 2014. However, the audio
recordings of the April, May, and June 2013 Board meetings were discarded, respectively, in
May, June, and July 2013, before Joseph received the e-mail warning. Plaintiff identified three
e-mails omitted from defendants’ discovery production, but there is no basis for inferring that
this represents a deliberate effort to conceal evidence rather than an inadvertent oversight. There
is no explanation regarding the disposition of the Board members’ written notes, but there is no
basis for inferring that they were deliberately suppressed. Accordingly, there is no evidentiary
support for plaintiff’s accusation that defendants engaged in egregious misconduct.

       The allegedly lost evidence is related to plaintiff’s allegations that defendants violated his
pension rights at the instigation of McCarroll, Joseph, and other persons acting with vindictive
motives. As previously discussed, however, defendants’ recalculation of plaintiff’s pension was
based on the terms of the CBA. This was not a discretionary decision potentially affected by
individuals’ subjective opinions of plaintiff. Accordingly, the content of the recordings, notes,

                                                -8-
and e-mails could not have helped plaintiff obtain a more favorable outcome. Under these
circumstances, neither default, nor a less severe sanction, was appropriate. Therefore, the trial
court did not abuse its discretion in denying plaintiff’s motion for a sanction of default.

       Affirmed. No costs awarded. MCR 2.719(A).



                                                           /s/ Michael J. Talbot
                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Stephen L. Borrello




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