In re Estate

CourtSupreme Court of Michigan
Citation835 N.W.2d 545,494 Mich. 367
Docket NumberDocket No. 145055.,Calendar No. 8.
Decision Date26 July 2013

494 Mich. 367
835 N.W.2d 545


Docket No. 145055.
Calendar No. 8.

Supreme Court of Michigan.

Argued March 6, 2013.
Decided July 26, 2013.

[835 N.W.2d 547]

Timothy T. Taylor, for Nancy Mick.

Varnum LLP, Grand Rapids (by Peter A. Smit, Adam J. Brody, and Gary J. Mouw), for the Kent County Sheriff's Department.

Plunkett Cooney, Bloomfield Hills (by Mary Massaron Ross and Hilary A. Ballentine), for the Michigan Municipal League, the Michigan Municipal League Liability and Property Pool, the Michigan Townships Association, and the Public Corporation Law Section of the State Bar of Michigan.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and Aaron D. Lindstrom, Assistant Solicitor General, for the Department of the Attorney General.


[494 Mich. 371]In this case, we decide whether a civil contempt petition that seeks indemnification damages under MCL 600.1721 imposes “tort liability” within the meaning of MCL 691.1407(1) of the governmental tort liability act (GTLA), MCL 691.1401 et seq. Given the Legislature's use of the common-law term “tort,” we hold that “tort liability” as used in MCL 691.1407(1) of the GTLA encompasses all legal responsibility

[835 N.W.2d 548]

for civil wrongs, other than a breach of contract, for which a remedy may be obtained in the form of compensatory damages. We further hold that MCL 600.1721 imposes “tort liability” because it authorizes an award of indemnification, or compensatory, damages [494 Mich. 372]to remedy a noncontractual civil wrong. Consequently, MCL 691.1407(1) of the GTLA provides governmental agencies with immunity from civil contempt petitions seeking indemnification damages under MCL 600.1721. Because the Court of Appeals reached a contrary conclusion, we reverse the judgment of the Court of Appeals and remand this case to the probate court for entry of an order granting summary disposition in favor of respondent.


In the summer of 2004, petitioner, Nancy Mick, became increasingly concerned about the mental health of her brother, Stephen Bradley. She noticed that Bradley had grown “more agitated and violent,” and he had admitted to her that he was suicidal. Petitioner feared that if Bradley did not receive help “he could kill himself and his family.” As a result, in August 2004, she petitioned the Kent County Probate Court for Bradley's hospitalization, averring that Bradley was a danger to himself and his family. She accompanied her petition with a supplemental petition for examination and hospitalization, requesting a court order directing a peace officer to take Bradley into protective custody.

The probate court granted the petitions that same day and issued an order requiring that Bradley submit to psychiatric examination and requiring his hospitalization. The order specified that a “peace officer shall take [Bradley] into protective custody and transport him ... to [Cornerstone Community Mental Health or any community mental health contract facility].” Petitioner immediately submitted the order to respondent, the Kent County Sheriff's Department, for execution and provided additional details to the sergeant on duty [494 Mich. 373]concerning how petitioner expected Bradley to react to being taken into custody and the fact that Bradley possessed several firearms.

Respondent, however, did not timely execute the probate court's order. In the days that followed, petitioner contacted respondent twice in regard to Bradley's situation, and each time respondent assured her that the pickup would take place as soon as possible. Ultimately, respondent never attempted to take Bradley into protective custody and, nine days after the probate court entered its order, Bradley committed suicide.

After Bradley's suicide, petitioner wrote to Kent County Sheriff Lawrence A. Stelma, requesting an internal investigation, which ultimately concluded that the failure to execute the order was “an obvious case of simple neglect in that this petition was not executed in the manner that mental health petitions normally are handled.” 1 Stelma informed petitioner by letter of the investigation's findings, confirming that

[835 N.W.2d 549]

the order had not been executed and describing respondent's failure as “an unusual occurrence” that did “not reflect any policy or procedure on the part of the Sheriff's Department....”

More than two years later, petitioner, acting as personal representative of Bradley's estate, filed a wrongful[494 Mich. 374]death suit against respondent and Stelma, alleging that they were grossly negligent in their failure to execute the probate court order and that their negligence was the proximate cause of Bradley's death. The circuit court dismissed the case on governmental immunity grounds, opining that respondent was not a legal entity that could be sued and that Stelma was individually immune from suit under the GTLA.

Petitioner did not appeal the circuit court's dismissal. Instead, she filed a petition for civil contempt in the probate court against respondent. The petition alleged that respondent's violation of the probate court's order constituted contempt of court, entitling her to indemnification damages pursuant to MCL 600.1721. The petition replicated the contents of petitioner's wrongful death complaint and sought damages “including, but not limited to, all of those damages set forth in the Michigan Wrongful Death Statute, MCL 600.2922, et seq.” 2

Respondent moved for summary disposition, arguing that it was immune from liability under MCL 691.1407(1) of the GTLA because petitioner sought to impose tort liability in the guise of a civil contempt petition.3 The probate court denied respondent's motion reasoning that “[g]overnmental immunity does not [494 Mich. 375]insulate a contemnor from the contemnor's refusal or negligence to obey a court order.” The probate court acknowledged an “overlap of remedies between a court['s] power of contempt and a compensation that may be argued under tort,” but concluded that this overlap did not impede a court's inherent authority to punish contempt.

Respondent appealed the probate court's ruling to the circuit court, which reversed and remanded the case to the probate court for entry of an order granting summary disposition in favor of respondent. Relying on the definition of “tort liability” articulated in Tate v. Grand Rapids,4 the circuit court concluded that petitioner's civil contempt petition was based in tort because the petition sought damages under the wrongful death statute. The circuit court, therefore, held that petitioner's claim was barred by the GTLA. While cognizant of courts' inherent authority to punish contempt, the circuit court concluded that the scope of that inherent authority is limited to the power to punish by fine or imprisonment. Because petitioner did not invoke the probate court's inherent power to punish contempt by either fine or imprisonment, but instead sought indemnification damages pursuant to MCL 600.1721, the court did not consider its holding—that petitioner's claim is barred by the GTLA—as infringing on courts' inherent contempt powers.

[835 N.W.2d 550]

The Court of Appeals granted petitioner's application for leave to appeal and, in a published opinion per curiam, reversed the circuit court's decision.5 The Court of Appeals held that the GTLA does not immunize governmental agencies from “tort-like” damages [494 Mich. 376]sought pursuant to MCL 600.1721.6 Relying on Tate7 and Ross v. Consumers Power Co. (On Rehearing),8 the Court of Appeals opined that whether a “contempt claim can survive a governmental immunity challenge is controlled not by the nature of the damages sought, but by whether [the] contempt action is a cause of action that is separate and distinct from one that is grounded in tort liability.” 9 The Court of Appeals explained:

In accord with the Ross Court's holding that the GTLA will not bar recovery simply because the underlying facts could have also established a tort cause of action, we conclude that tort-like damages are recoverable in a contempt action assuming contempt can be proved. Thus, whether the GTLA implicates the viability of Mick's contempt action rests on whether Mick can successfully plead and establish a contempt cause of action. The nature of the damages being requested has no role in determining whether the action is barred by [the] GTLA. Consequently, the circuit court erred when it dismissed this case merely because the damages sought were similar to tort damages.[10

We granted respondent's application for leave to appeal to consider whether “petitioner's claim for civil contempt indemnification damages under MCL 600.1721 is barred by the [GTLA].” 11


We review de novo a decision on a motion for summary disposition. 12 Under MCR 2.116(C)(7), summary [494 Mich. 377]disposition is appropriate when a claim is barred by governmental immunity.13 A party filing suit against a governmental agency bears the burden of pleading his or her claim in avoidance of governmental immunity.14

We also review de novo issues of statutory interpretation.15 When construing a statute, we consider the statute's plain language and we enforce clear and unambiguous language as written. 16 While terms must be construed according to their plain and ordinary meaning, words and phrases “as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.” 17 Moreover, when the Legislature

[835 N.W.2d 551]

chooses to employ a common-law term without indicating an intent to alter the common law, the term will be interpreted consistent with its common-law meaning.18


Since Michigan became a state in 1837, Michigan jurisprudence has recognized the preexisting common-law concept of sovereign immunity, which immunizes the “sovereign” state...

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