Walsh v. Taylor

• Decision Date: 10 November 2004
• Docket Number: Docket No. 246059.
• Citation: 263 Mich. App. 618,689 N.W.2d 506
• Parties: Stanley T. WALSH, Plaintiff-Appellee, v. Robert TAYLOR, Defendant-Appellant, and Richard Margosian, Defendant.
• Court: Court of Appeal of Michigan — District of US

689 N.W.2d 506

263 Mich. App. 618

Stanley T. WALSH, Plaintiff-Appellee, v. Robert TAYLOR, Defendant-Appellant, and Richard Margosian, Defendant.

Docket No. 246059.

Court of Appeals of Michigan.

Submitted June 2, 2004, at Detroit.

Decided September 23, 2004, at 9:00 a.m.

Released for Publication November 10, 2004.

The F.L. Gibson Group, P.C. (by Fred L. Gibson), Clinton Township, for the plaintiff.

Clark Hill, P.L.C. (by Neil H. Goodman), Birmingham, for Robert Taylor.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and James T. Farrell, Assistant Attorney General, for Richard Margosian.

Before: SAAD, P.J., and TALBOT and BORRELLO, JJ.

TALBOT, J.

This case arises from the underlying arrest and detention of plaintiff Stanley T. Walsh by defendant law enforcement officers Robert Taylor and Richard Margosian on a charge that plaintiff solicited the purchase of illegal drugs. A magistrate later dismissed the charge. Defendant Taylor appeals as of right the circuit court's order denying his motion for summary disposition premised on governmental immunity. We reverse.

I

Taylor first argues that the circuit court erred by denying his motion for summary disposition of plaintiff's state law tort claims of false arrest and imprisonment, malicious prosecution, and intentional infliction of emotional distress. He asserts that the undisputed facts demonstrated that he had probable cause for swearing to the request for warrant authorization (RWA) allegation that plaintiff solicited cocaine.

We review de novo a circuit court's summary disposition ruling. Maskery v. Univ. of Michigan Bd. of Regents, 468 Mich. 609, 613, 664 N.W.2d 165 (2003). Taylor moved for summary disposition pursuant to MCR 2.116(C)(7) and (C)(10). Although Taylor sought summary disposition, in part, on the basis of governmental immunity, the immunity provided by M.C.L. § 691.1407(2) does not apply to an intentional tort by an individual governmental employee, such as is alleged by plaintiff in this case. Lavey v. Mills, 248 Mich.App. 244, 257, 639 N.W.2d 261 (2001); Sudul v. Hamtramck, 221 Mich.App. 455, 458, 481, 486-488, 562 N.W.2d 478 (1997). The trial court did not specify the basis for its ruling, but apparently denied Taylor's motion pursuant to MCR 2.116(C)(10), which tests the factual support of a plaintiff's claim.¹Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial. Spiek, supra at 337, 572 N.W.2d 201.

The parties do not dispute jurisdiction in this case. We are compelled to address it, however, in light of Newton v. State Police, 263 Mich.App. 251, 688 N.W.2d 94 (2004), in which a panel of this Court concluded that a party cannot claim an appeal as of right where, although a party asserts governmental immunity, the trial court grants summary disposition under MCR 2.116(C)(10). We disagree with that part of the decision in Newton, and identify a conflict on the question of jurisdiction under MCR 7.202(6) and MCR 7.203(A)(1).² MCR 7.215(J).

The question of jurisdiction is always within the scope of this Court's review, In re Complaint of Knox, 255 Mich.App. 454, 457, 660 N.W.2d 777 (2003); MCR 7.216(A)(10). The jurisdiction of the Court of Appeals is provided by law, and its practice and procedure are prescribed by the court rules and our Supreme Court. Const. 1963, art. VI, § 10. See MCR 7.202(6) and MCR 7.203. Unlike that of our Supreme Court or the circuit court, the jurisdiction of this Court is "entirely statutory," People v. Milton, 393 Mich. 234, 245, 224 N.W.2d 266 (1974), and is generally limited to final judgments and orders. M.C.L. § 600.308.

In its exercise of prescribing this Court's practice and procedure, our Supreme Court has determined that a "final" judgment or order includes an appeal from an order denying governmental immunity to a governmental party, including a governmental agency, official, or employee. MCR 7.202(6)(a)(v). The question of appellate review under MCR 7.202(6)(a)(v) is a matter of procedure.³ Const. 1963, art. VI, § 10.

As a question of procedure, then, the question is generally whether a party has an appeal as of right when only claims of intentional tort survive. The panel in Newton, supra, concluded that there is no appeal as of right in that situation. We disagree and, except that we are bound by this Court's prior decision, MCR 7.215(J), would conclude that, as a general rule, whenever a trial court rules on a motion for summary disposition where there is a governmental party acting under color of authority, the order may be appealed as of right because the cause of action falls within the scope of MCR 7.202(6)(a)(v).

When construing a court rule, the rules of statutory construction apply, and common words must be understood to have their plain, ordinary meaning. If a court rule is unambiguous, it must be enforced without further judicial construction. In re KH, 469 Mich. 621, 628, 677 N.W.2d 800 (2004).

Here, it is undisputed that all of plaintiff's allegations involved the conduct of on-duty police officers "acting under color of law." Plaintiff alleged that Taylor committed intentional torts in his capacity as a police lieutenant with the narcotics unit, COMET.⁴ As noted previously, the intentional torts of a governmental employee are not entitled to immunity. Lavey, supra at 257, 639 N.W.2d 261. Here, although plaintiff's complaint alleged intentional torts, Taylor asserted that the case was barred because of governmental immunity.

The court rules limit an appeal from an order denying governmental immunity "to the portion of the order with respect to which there is an appeal of right." MCR 7.203(A)(1). M.C.L. § 691.1407(2), provides that governmental employees are immune from tort liability if all of the following are met:

(a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority.

(b) The governmental agency is engaged in the exercise or discharge of a governmental function.

(c) The officer's ... [or] employee's ... conduct does not amount to gross negligence that is the proximate cause of the injury or damage. As used in this subdivision, "gross negligence" means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.

It is important to note that the purpose of governmental immunity is to protect the governmental body, not only from liability, but from the trial itself. See Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). It is axiomatic that, in any dispute where the governmental body claims an immunity defense, the plaintiff will allege that their case is outside the scope of immunity. Thus, most orders denying governmental immunity will arise as did the one here, as a result of a plaintiff's allegations in avoidance of immunity. However, a plaintiff's mere allegations are not enough to avoid the broad sweep of immunity. If a trial court must simply let a case go forward whenever the plaintiff claims that intentional torts are involved, immunity would be illusory. Instead, we believe that whenever a plaintiff alleges facts in avoidance of immunity, or when a defendant claims that immunity applies, the trial court should be obligated to evaluate the specific conduct alleged to determine whether a valid exception exists. The potential of immunity is at the core of virtually any case involving a governmental party. Thus, contrary to the reasoning in Newton, regardless of the specific basis of the trial court's ruling on a motion for summary disposition, whenever the effect is to deny a defendant's claim of immunity, the trial court's decision is, in fact, "an order denying governmental immunity." Logic dictates that such a determination be reviewable under MCR 7.203(A). MCR 7.202(6)(a)(v). When the trial court denied Taylor's motion in this case, the practical effect of the court's ruling was to deny Taylor's claim of governmental immunity.

The governmental immunity act, M.C.L. § 691.1401 et seq., "takes great pains to protect governmental employees to enable them to enjoy a certain degree of security as they go about performing their jobs." Tarlea v. Crabtree, 263 Mich.App. 80, 687 N.W.2d 333 (2004) (citations omitted.) As noted, the purpose behind the court rule that permits a governmental body to appeal before there is a final judgment is to protect the defendant, not only from liability, but from the trial itself. Mitchell, supra at 511, 105 S.Ct. 2806. We do not believe that our Supreme Court intended the court rule to be read so restrictively that governmental bodies would be forced through discovery and trial whenever their motion for dismissal is denied on grounds other than MCR 2.116(C)(7), merely because the plaintiff contends that the governmental agency is not immune. If we were writing on a blank state, except for Newton, supra, we would find that a defendant who claims immunity may challenge, as of right, a plaintiff's alleged exception to governmental immunity when those allegations result in an order denying governmental immunity. MCR 7.203(A). Otherwise, in a case such as this, the claim of immunity could be "effectively lost" when a plaintiff's allegations in avoidance of immunity were "erroneously permitted to go to trial." Mitchell, supra at 526, 105 S.Ct. 2806. Accordingly, but for Newton, supra, we would conclude, on the clear and unambiguous language of the court rules that, regardless of the basis for a lower court's order, whenever that order denies immunity to a governmental party, agency, official, or employee, it is a final order that may be appealed of right. MCR 7.202...