Murriel v. City of Detroit

• Decision Date: 21 February 2023
• Docket Number: 359528,359530
• Parties: ELAINE KEYMO MURRIEL, Plaintiff-Appellee, v. CITY OF DETROIT, Defendant-Appellant, and GARY STEELE and DETROIT POLICE DEPARTMENT, Defendants. ELAINE KEYMO MURRIEL, Plaintiff-Appellee, v. CITY OF DETROIT and DETROIT POLICE DEPARTMENT, Defendants, and GARY STEELE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

ELAINE KEYMO MURRIEL, Plaintiff-Appellee, v. CITY OF DETROIT, Defendant-Appellant, and GARY STEELE and DETROIT POLICE DEPARTMENT, Defendants. ELAINE KEYMO MURRIEL, Plaintiff-Appellee, v. CITY OF DETROIT and DETROIT POLICE DEPARTMENT, Defendants, and GARY STEELE, Defendant-Appellant.

Nos. 359528, 359530

Court of Appeals of Michigan

February 21, 2023

UNPUBLISHED

Wayne Circuit Court LC No. 19-006174-NO, 19-006174-NO

Before: K. F. KELLY, P.J., and MURRAY and SWARTZLE, JJ.

PER CURIAM.

In these consolidated appeals,^[1] in Docket No. 358528, defendant City of Detroit (the "City") appeals by right the trial court's order denying the City's motion for partial summary disposition under MCR 2.116(C)(7) on the basis of immunity. In Docket No. 358530, defendant Gary Steele appeals by right the trial court's order denying Steele's motion for partial summary disposition under MCR 2.116(C)(7), which was also offered on the basis of immunity. Finding no errors warranting reversal, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

This case arises from the arrest of plaintiff Elaine Keymo Murriel in Detroit, Michigan on May 31, 2018. On the date at issue plaintiff claimed she was dropping off her child with Andre Hollis, the child's father, who lived on Faust Road and Dover Road in Detroit when she saw Ashante Moore driving her vehicle near the same intersection. Moore was, according to plaintiff, dating Hollis, and plaintiff had obtained a personal protection order ("PPO") against Moore after Moore previously tried to run over plaintiff with her car.

Plaintiff claimed that when Moore saw plaintiff removing her child Moore attempted to hit plaintiff with her car "by driving her vehicle at Plaintiff's body, in an attempt to run her over." Seeing that Moore was attempting to hit her, plaintiff claimed she drew her lawfully-carried firearm and shot at Moore. As a result of the gunfire, police were called to the scene.

When officers arrived, plaintiff informed them that she had a firearm in the trunk of her car and it was used to shoot at a vehicle that was trying to hit her. While other officers were speaking with plaintiff, Steele went to Moore's house to speak with her, who stated that she and plaintiff only got into a verbal altercation. According to police, Moore stated plaintiff "had just fired shots at her vehicle, while she was driving on Faust and Dover, after a verbal altercation, then followed her home and fired additional shots at her and the occupants of her vehicle [2 children] as she ran inside her home."

Steele stated that upon observation, he noticed bullet holes in the back of Moore's car. According to Steele, the location of the bullet holes suggested that Moore was driving away from plaintiff, not toward her, at the time plaintiff fired her gun. After interviewing Moore and observing the vehicle, Steele decided to place plaintiff under arrest.

When Steele advised plaintiff that she was under arrest, plaintiff "began to back away, refusing to give her child to the officers." After one officer was able to take plaintiff's child, Steele attempted to place handcuffs on plaintiff, causing plaintiff to make a "sudden turn." At this point, plaintiff's "left arm ended up above her head and when Corporal Steele attempted to place [plaintiff]'s arm behind her back, [plaintiff] sustained a fractured left ulna (elbow)."

For her part, plaintiff alleged that while she was holding her son, Steele suddenly decided to place her under arrest. Before plaintiff was able to pass her child to a relative, plaintiff claimed that an officer "grab[bed] and rip[ped]" the child from her arm. After her child was taken, plaintiff stated that Steele then pushed her up against a car and "violently" grabbed her arms. As Steele twisted her arms to put handcuffs on her, he pulled her left arm in such a way that her elbow bent in an unnatural manner and was broken. Plaintiff claimed that Steele's use of force was unnecessary and unjustified, because no officers saw her commit a crime and she was not armed while she was being arrested. According to plaintiff, Steele would not give plaintiff aid and other officers had to call an ambulance.

Plaintiff filed a complaint on April 29, 2019, naming the City, Steele, and the Detroit Police Department ("DPD") as defendants. In Count I, plaintiff alleged Steele was grossly negligent and exhibited wanton and willful conduct when arresting plaintiff with excessive force. In Count II, plaintiff alleged violations of the Elliot-Larsen Civil Rights Act, MCL 37.2101 et seq. ("ELCRA"), against all defendants.^[2]

Steele moved for summary disposition under MCR 2.116(C)(7), (C)(8), and (C)(10), claiming plaintiff failed to state a claim regarding the count for gross negligence and wanton and willful conduct. Steele also argued that his conduct was immune from suit under the Governmental Tort Liability Act MCL 691.1401 et seq. ("GTLA"), asserting that the arrest of plaintiff did not amount to gross negligence. Lastly, Steele argued that plaintiff could not show race discrimination under the ELCRA. On April 12, 2021, the trial denied the motion.

Defendants subsequently filed a second round of summary disposition motions, this time arguing that the ELCRA did not waive immunity over tort actions and, because plaintiff was seeking money damages for a tort, the defendants were immune from liability. Again, the trial court denied the motions, concluding that the GTLA did not bar plaintiff's ELCRA claims because immunity was waived under the ELCRA. These appeals followed.

II. ANALYSIS

A. JURISDICTION

In her counterstatement on jurisdiction, plaintiff argues that this Court does not have jurisdiction to consider defendants' arguments relating to gross negligence and immunity- presented in Issue I of their brief on appeal--because defendants do not have an appeal by right over the issue nor can they seek leave to appeal. Plaintiff also argues the Court does not have jurisdiction to consider defendants' arguments relating to whether plaintiff made a prima facie case for discrimination under the ELCRA-presented in Issue II of defendants' brief-for the same reasons. We agree.

This Court reviews de novo the question of whether the Court has jurisdiction over defendants' claim of appeal. Chen v Wayne State Univ, 284 Mich.App. 172, 191; 771 N.W.2d 820 (2009).

"The jurisdiction of the Court of Appeals is governed by statute and court rule." Id. This Court has jurisdiction over claims of appeal by right from

A final judgment or final order of the circuit court, or court of claims, as defined in MCR 7.202(6), except a judgment or order of the circuit court

(a) on appeal from any other court or tribunal;

(b) in a criminal case in which the conviction is based on a plea of guilty or nolo contendere[.] [MCR 7.203(A)(1).]

As relevant here, a final order under MCR 7.203 includes "an order denying governmental immunity to a governmental party, including a governmental agency, official, or employee under MCR 2.116(C)(7) or an order denying a motion for summary disposition under MCR 2.116(C)(10) based on a claim of governmental immunity." MCR 7.202(6)(a)(v). An appeal from an order denying governmental immunity "is limited to the portion of the order with respect to which there is an appeal of right." MCR 7.203(A)(1). Unless a statute or rule provides otherwise, a party must file a claim of appeal within 21 days of entry of the final order from which the party appeals. MCR 7.204(A)(1).

The question presented in Issue I of defendants' appeal states "Does Michigan's Governmental Tort Liability Act, MCL 691.1407, bar a claim for money damages for gross negligence against a police officer who is protected with governmental immunity." In the subsequent argument, defendants argue the trial court erred when it denied Steele's motion for summary disposition because the GTLA does not permit recovery where the plaintiff fails to show that the defendant's gross negligence was the proximate cause of the plaintiff's injury.

Defendants would, in the abstract, have an appeal by right over the trial court's order denying summary disposition on the basis of immunity. See MCR 7.202(6)(a)(v). However, the trial court's order addressing defendants' argument concerning immunity, gross negligence, and proximate causation was entered on April 12, 2021, and defendants did not file their claim of appeal until December 8, 2021, almost nine months after the entry of the order. The motions for summary disposition from which defendants did ultimately file a timely claim of appeal did not raise the issue of immunity in the context of gross negligence or proximate causation. Thus, because defendants did not timely file a claim of appeal from the trial court's April 12, 2021 order, we lack jurisdiction to consider defendants' arguments related to immunity and gross negligence or proximate causation.

We also lack jurisdiction over defendants' argument that the trial court erred because plaintiff failed to make a prima facie showing of discrimination. The question of whether plaintiff made a prima facie case for discrimination is not related to whether defendants have immunity from suit under the ELCRA when a plaintiff seeks money damages. In other words, while it would be true that the outcome of the case would be the same for defendants if the Court decided in their favor on immunity grounds or on the merits, this Court's jurisdiction exists only over the portions of the order from which there is an appeal by right. Because defendants do not have an independent appeal by right regarding the underlying merits of plaintiff's ELCRA claim, it cannot surreptitiously include such bases for reversal at this stage. See MCR 7.203(A)(1) (stating an appeal from...