                           STATE OF MICHIGAN

                            COURT OF APPEALS



EARL D. BOOTH,                                                     UNPUBLISHED
                                                                   December 1, 2016
               Plaintiff-Appellant,

v                                                                  No. 331807; 332014
                                                                   Court of Claims
DEPARTMENT OF CORRECTIONS,                                         LC No. 13-000173-MZ

               Defendant-Appellee.


Before: RONAYNE KRAUSE, P.J., and O’CONNELL and GLEICHER, JJ.

O’CONNELL, J. (dissenting).

       I respectfully dissent.

        In Booth v Dep’t of Corrections, unpublished opinion per curiam of the Court of
Appeals, issued June 9, 2015 (Docket No. 324319), unpub op at 1, this Court remanded this case
for the lower court to consider two issues: an in camera review of the recording and for the trial
court to consider Booth’s entitlement to partial attorney fees. The lower court ruled in favor of
defendant on both issues. I would affirm the well-reasoned decision of the lower court.

        In IBM v Dep’t of Treasury, ___ Mich App ____; ___ NW2d ___ (2016), this Court held
that a lower court cannot exceed the scope of a remand order. It necessarily follows that on this
second appeal, neither Booth nor the majority opinion can expand the issues to be resolved on
second appeal. However, this is exactly what has occurred in this appeal. I would limit this
appeal to the two issues stated above because to do otherwise allows the appellant to re-litigate
issues ad infinitum, similar to a Phoenix arising from the ashes.

       In Booth, we clearly stated that our remand was limited to discerning whether a
conversation between Booth and the prisoner may also be heard on the recording. We stated,
“Booth clarified at oral argument before this Court that a conversation between Booth and the
prisoner may also be heard on the recording, and it is access to this specific conversation—not
any private conversation between the prisoner and his mother—that Booth seeks.” Booth, unpub
at 3. We then remanded this case for an in camera review of the recording to determine if any
discernable conversation was available. Id. The sole purpose of the remand in Booth was to
determine if any of Booth’s comments were discernable on the recording.

       On remand, the lower court conducted an in camera hearing and concluded that no
discernable conversation could be heard between Booth, the prisoner, and the prisoner’s mother.

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The majority, after attempting to listen to this conversation, agrees with the lower court. As a
result of this conclusion, there exists no disclosable information under the Freedom of
Information Act (FOIA), MCL 15.231 et seq. It necessarily follows that no attorney fees can be
awarded.

         Unfortunately, the majority seeks to expand this appeal to determine if the balance of the
conversation between the prisoner and his mother is subject to FOIA. That issue was decided in
the first appeal and cannot be re-litigated. People v Davis, 300 Mich App 502, 508; 834 NW2d
897 (2013). Because plaintiff has prevailed in no part of this appeal, no production of further
documents or other information in connection with plaintiff’s FOIA campaign will follow.
Therefore plaintiff is not entitled to any attendant fees or costs under MCL 15.240(6).

       I would affirm.

                                                            /s/ Peter D. O’Connell




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