General Aviation, Inc. v. Capital Region Airport Authority

• Decision Date: 25 July 1997
• Docket Number: Docket No. 192008
• Citation: 224 Mich.App. 710,569 N.W.2d 883
• Parties: GENERAL AVIATION, INC., Plaintiff-Appellant, v. CAPITAL REGION AIRPORT AUTHORITY, Defendant-Appellee.(On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 883

569 N.W.2d 883

224 Mich.App. 710

GENERAL AVIATION, INC., Plaintiff-Appellant, v. CAPITAL REGION AIRPORT AUTHORITY, Defendant-Appellee.(On Remand)

Docket No. 192008.

Court of Appeals of Michigan.

Submitted June 3, 1997, at Lansing.

Decided July 25, 1997, at 9:25 a.m.

Released for Publication Oct. 28, 1997.

Fraser Trebilcock Davis & Foster, P.C. by Michael E. Cavanaugh and Michelyn E. Pasteur, Lansing, for Plaintiff-Appellant.

McClelland & Anderson, L.L.P. by Gregory L. McClelland and Melissa A. Hagen, Lansing, and Larry A. Salstrom, P.C. by Larry A. Salstrom, Okemos, for Defendant-Appellee.

Before CORRIGAN, C.J., and MICHAEL J. KELLY and HOEKSTRA, JJ.

ON REMAND

MICHAEL J. KELLY, Judge.

This case comes to us on remand from the Supreme Court pursuant to MCR 7.302(F)(1) for consideration as on leave granted. General Aviation, Inc. v. Capital Region Airport Authority, 450 Mich. 991, 544 N.W.2d 474 (1996). Plaintiff appeals from an order granting partial summary disposition for defendant pursuant to MCR 2.116(C)(7) and (C)(10). We affirm.

Plaintiff leases space at defendant's airport to provide fixed-base operator services, which include supplying, fueling, and maintaining planes. Plaintiff sued defendant, alleging that defendant offered better lease terms to other tenants and failed to enforce its rules and fees uniformly. Plaintiff asserted several different theories of liability, including tort, breach of contract, and violation of the Aeronautics Code of the State of Michigan, M.C.L. § 259.1 et seq.; M.S.A. § 10.101 et seq. Plaintiff's tort claims essentially alleged that defendant breached duties under its own regulations and the Aeronautics Code. Plaintiff's contract claims alleged that defendant breached its duty under the terms of the lease to enforce its rules and fees in a uniform and consistent manner. The trial court granted defendant's motion for summary disposition with regard to most of plaintiff's claims, finding that (1) defendant was entitled to governmental immunity with regard to plaintiff's tort claims, (2) there was no genuine issue of material fact regarding plaintiff's contract claims, because the parties' lease did not create any rights in plaintiff beyond those set forth in the Aeronautics Code, and (3) there was no genuine issue of material fact regarding plaintiff's claims for monetary damages under the Aeronautics code, because the code did not provide a private cause of action for damages.

Plaintiff first argues that the trial court erred in dismissing its tort claims against defendant on the ground that they were barred by governmental immunity. We disagree. Defendant is a governmental agency engaged in a governmental function and is thus generally entitled to immunity from tort liability. M.C.L. § 691.1407; M.S.A. § 3.996(107). Plaintiff contends that the proprietary function exception to governmental immunity applies in this case because operating an airport is a proprietary act, not a governmental function. See M.C.L. § 691.1413; M.S.A. § 3.996(113). In Codd v. Wayne Co., 210 Mich.App. 133, 136-137, 537 N.W.2d 453 (1995), we found that operation of an airport by a governmental entity is not a proprietary function. Although we acknowledge that our previous decisions have reached conflicting conclusions regarding this issue, see Johnson v. Detroit Metropolitan Airport, 133 Mich.App. 603, 608, 350 N.W.2d 295 (1984), Administrative Order No. 1996-4 requires us to follow the holding in Codd. Moreover, we believe that Codd is correct.

Plaintiff also argues that defendant is not immune from tort liability because defendant is a regional airport authority organized under the airport authorities act, M.C.L. § 259.801 et seq.; M.S.A. § 10.380(1) et seq., which provides that airport authorities may "sue or be sued in any court of this state...." M.C.L. § 259.807; M.S.A. § 10.380(7). Although there is federal support for interpreting such boilerplate language in enabling legislation as an express waiver of governmental immunity, seeLoeffler v. Frank, 486 U.S. 549, 560-562, 108 S.Ct. 1965, 1972-73, 100 L.Ed.2d 549 (1988), Michigan courts have upheld immunity for governmental entities established under enabling legislation containing "sue or be sued" language. See, e.g., Randall v. Delta Charter Twp., 121 Mich.App. 26, 328 N.W.2d 562 (1982) (immunity recognized for township established underM.C.L. § 41.2; M.S.A. § 5.2, which contains "sue or be sued" language). Therefore, we do not read the "sue or be sued" language contained in the airport authorities act as having been inserted to constitute an express waiver of governmental immunity. Such a reading would have a Draconian effect on unrelated and long-established Michigan governmentally related legislation.

Next, plaintiff argues that the trial court erred in summarily disposing of its breach of contract claim, because it submitted evidence to establish that defendant violated its contractually assumed duty to apply its rules uniformly. Plaintiff advances that the following language from the parties' lease created a duty on the part of defendant:

[Defendant] shall have the right to adopt and enforce reasonable, uniform and consistently applied ordinances, rules, regulations, standards, fees, charges and any amendments thereto with respect to the operation and use of Capital City Airport.

Even if this language could be interpreted as evidence of an attempt to create a duty on defendant's part, defendant owed a preexisting obligation under the Michigan Aeronautics Code to fairly and uniformly apply its regulations and charges relating to the operation, use, and leasing of the airport facilities. M.C.L. § 259.133(e) and (g); M.S.A. § 10.233(e) and (g). A pledge to undertake a preexisting statutory duty is not supported by adequate consideration. Alar v. Mercy Memorial Hosp., 208 Mich.App. 518, 525, 529 N.W.2d 318 (1995). Therefore, the trial court was correct in dismissing plaintiff's breach of contract claim.

Lastly, we disagree with plaintiff's contention that the trial court erred in concluding that...