Tyrrell v. Univ. of Mich.

• Decision Date: 22 December 2020
• Docket Number: No. 349020,349020
• Citation: 335 Mich.App. 254,966 N.W.2d 219
• Parties: Lana TYRRELL, Plaintiff-Appellee, v. UNIVERSITY OF MICHIGAN, Teri Grieb, Valerie Hill, Melissa Dyson, Jessica Durrkin, and Carrie Peterson, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

335 Mich.App. 254

966 N.W.2d 219

Lana TYRRELL, Plaintiff-Appellee,

v.UNIVERSITY OF MICHIGAN, Teri Grieb, Valerie Hill, Melissa Dyson, Jessica Durrkin, and Carrie Peterson, Defendants-Appellants.

No. 349020

Court of Appeals of Michigan.

Submitted October 6, 2020, at Detroit.

Decided December 22, 2020, 9:10 a.m.

NachtLaw, PC (by David A. Nacht, Ann Arbor and Adam M. Taub, Southfield) for Lana Tyrrell.

Thomas L. Kent, Chelsea, for the University of Michigan.

Before: Gadola, P.J., and Ronayne Krause and O'Brien, JJ.

O'Brien, J.

At issue in this appeal is whether a plaintiff who files an action in circuit court against a state defendant is required to comply with MCL 600.6431(1) of the Court of Claims Act (COCA), MCL 600.6401 et seq. This in turn requires us to address whether compliance with MCL 600.6431(1) is a question of governmental immunity or a question of compliance with the rules for proceeding in the Court of Claims. For the reasons explained in this opinion, we conclude that compliance with MCL 600.6431(1) both (1) does not implicate governmental immunity absent the Legislature conditioning its consent to be sued on compliance with the COCA, and (2) is only necessary for claims proceeding in the Court of Claims. We therefore affirm.

I. BACKGROUND

Plaintiff filed a complaint against defendants in circuit court alleging discrimination and retaliation in violation of Michigan's Persons with Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq. Defendants moved for summary disposition under MCR 2.116(C)(4) and (7), arguing that in order to maintain her claim against a state university and its employees, plaintiff had to comply with the requirements in MCL 600.6431(1), which plaintiff failed to do. According to defendants, plaintiff's failure to comply with MCL 600.6431(1) required dismissal of her claims. The trial court denied defendants’ motion, and they now appeal.

II. JURISDICTION

Though defendants moved for summary disposition in part under MCR 2.116(C)(4), they do not contest the circuit court's jurisdiction to hear this case.¹ In fact, they concede on appeal that "the Court of Claims and the circuit courts have concurrent jurisdiction over statutory civil rights claims" like plaintiff's. See, e.g., Doe v. Dep't of Transp. , 324 Mich. App. 226, 238-239, 919 N.W.2d 670 (2018) (holding that because the plaintiff had a right to a jury trial in her civil rights claim against the state defendant, the circuit court retained jurisdiction by way of MCL 600.6421(1), while the Court of Claims had concurrent jurisdiction by way of MCL 600.6419 ). Therefore, the only question on appeal is whether defendants were entitled to summary disposition under MCR 2.116(C)(7).

Defendants appealed as of right the trial court's denial of their motion under MCR 2.116(C)(7). An order denying summary disposition under MCR 2.116(C)(7) is appealable to this Court as of right only if the order denied governmental immunity to a governmental party.² MCR 7.202(6)(a)(v ) ; MCR 7.203(A)(1).

When defendants filed their appeal, they understandably believed that plaintiff's failure to comply with the requirements of MCL 600.6431(1) implicated governmental immunity. In Progress Mich. v. Attorney General , 324 Mich. App. 659, 666, 922 N.W.2d 654 (2018) ( Progress I ), rev'd Progress Mich. v. Attorney General , 506 Mich. 74, 954 N.W.2d 475 (2020) ( Progress II ), this Court held that "[the] defendant's assertion that [the] plaintiff failed to comply with MCL 600.6431(1) does constitute a claim that [the] defendant was entitled to governmental immunity." This holding was the basis for defendants’ appeal as of right.

Our Supreme Court, however, recently reversed Progress I . The Progress II Court questioned this Court's analysis of whether failure to comply with MCL 600.6431 implicated governmental immunity, but declined to decide the issue. In doing so, the Progress II Court reasoned, "Whether compliance with [ MCL 600.6431 ] is properly considered a question of immunity or a question of compliance with the rules of the forum is a question of no moment because [the] plaintiff was required to comply with the COCA either way." Progress II , 506 Mich. at 89, 954 N.W.2d 475. Though the Supreme Court did not expressly overrule the Progress I Court's holding that a failure to comply with MCL 600.6431(1) implicates governmental immunity, its reasoning effectively mooted the question and rendered this Court's discussion of whether MCL 600.6431 implicated governmental immunity to be without precedential value. See Dunn v. Detroit Auto. Inter-Ins. Exch. , 254 Mich. App. 256, 266, 657 N.W.2d 153 (2002) (holding that a Supreme Court decision reversing the Court of Appeals on a dispositive issue effectively "moot[s] any further question regarding" the issue and renders "any discussion" of the mooted question "by the Court of Appeals to be without precedential value").

Therefore, in light of Progress II, it is undecided whether a plaintiff's failure to comply with MCL 600.6431 of the COCA "is properly considered a question of immunity or a question of compliance with the rules of the forum ...." Progress II , 506 Mich. at 89, 954 N.W.2d 475. Addressing this issue, we conclude that plaintiff's failure to comply with MCL 600.6431 in this case did not implicate governmental immunity, so the trial court's denial of defendants’ motion under MCR 2.116(C)(7) was not appealable as of right.

A court is, at all times, required to question sua sponte its own jurisdiction. Straus v. Governor , 459 Mich. 526, 532, 592 N.W.2d 53 (1999). Whether this Court has jurisdiction to hear an appeal is a question of law reviewed de novo. Chen v. Wayne State Univ. , 284 Mich. App. 172, 191, 771 N.W.2d 820 (2009).

"[T]he state is immune from suit unless, and only to the extent that, it consents to be sued[.]" Progress II , 506 Mich. at 87, 954 N.W.2d 475. Our Supreme Court explained the reasoning for this in Ross v. Consumers Power Co. (On Rehearing) , 420 Mich. 567, 598, 363 N.W.2d 641 (1984), stating:

From statehood forward, Michigan jurisprudence recognized that the sovereign (the state) was immune from all suits, including suits for tortious injuries which it had caused. The rationale for sovereign immunity was never grounded in a belief that the state could do no wrong. Rather, sovereign immunity existed in Michigan because the state, as creator of the courts, was not subject to them or their jurisdiction. As the Supreme Court stated in Michigan State Bank v. Hastings , 1 Doug. 225, 236 (Mich., 1844) :

The principle is well settled that, while a state may sue, it cannot be sued in its own courts, unless, indeed, it consents to submit itself to their jurisdiction. * * * [A]n act of the legislature, conferring jurisdiction upon the courts in the particular case, is the usual mode by which the state consents to submit its rights to the judgment of the judiciary.

Thus, the original Michigan rule held that the state was immune from all suits except to the extent that it consented to be sued in its courts. [Quotation marks omitted; alterations in original.]

"The Legislature can, and has, abrogated the state's sovereign immunity by enacting legislation consenting to suit." Progress II , 506 Mich. at 87, 954 N.W.2d 475. As relevant to this case, the Legislature abrogated the state's sovereign immunity for claims brought under the PWDCRA by consenting in the text of the statute to suit against the state and all governmental entities or agencies. The PWDCRA prohibits employers from taking certain discriminatory actions against persons with disabilities, see MCL 37.1202 ; the act defines "employer" as "a person who has [one] or more employees," MCL 37.1201(b) ; and the act defines "person" to include "this state, or any other legal, commercial, or governmental entity or agency," MCL 37.1103(g). Thus, the Legislature in the PWDCRA expressly waived governmental immunity for claims brought under the statute. See In re Bradley Estate , 494 Mich. 367, 393 n. 60, 835 N.W.2d 545 (2013) (explaining that the Legislature "expressly waiv[ed] governmental immunity" in the PWDCRA).

Despite the Legislature's having expressly waived governmental immunity for claims brought under the PWDCRA, defendants contend that they were immune from suit because plaintiff failed to comply with the requirements of MCL 600.6431. When plaintiff filed her complaint, MCL 600.6431(1) provided:

No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the state or any of its departments, commissions, boards, institutions, arms, or agencies, stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths.^{[3 ]}

In determining whether plaintiff's failure to comply with MCL 600.6431 implicates governmental immunity, we find instructive Fairley v. Dep't of Corrections , 497 Mich. 290, 871 N.W.2d 129 (2015). In Fairley , the plaintiffs brought tort claims against governmental agencies, which implicated the governmental tort liability act (GTLA), MCL 691.1401 et seq. Fairley , 497 Mich. at 293-297, 871 N.W.2d 129. Under the GTLA, governmental agencies are broadly shielded from tort liability absent an exception. MCL 691.1407(1). The plaintiffs alleged that their claims were authorized under the GTLA because they fell within the motor vehicle exception in MCL 691.1405. Fairley , 497 Mich. at 297, 871 N.W.2d 129. MCL 691.1410(1) of the GTLA provides, "Claims against the state authorized under this act shall be brought in the manner provided in [the Revised Judicature Act]," which includes MCL 600.6431. See Fairley , 497 Mich. at 297, 871...