*1 263 Mich v TAYLOR WALSH 2, 2004, Septem- Docket No. 246059. June at Submitted Detroit. Decided 2004, ber at 9:00 A.M. Stanley brought T. Walsh an in action the Macomb Circuit Court alleging Taylor Margosian, that Robert and Richard who were law engaged drug operation, enforcement officers in an undercover falsely imprisoned him, maliciously prosecuted arrested and him charge purchase illegal drugs, intentionally on a of solicitation to conduct, inflicted emotional on him their stress violated Taylor summary disposition, gov- USC claiming 1983. moved for 691.1407, immunity, ernmental MCL and that he had swearing request cause for ato for warrant authorization with respect plaintiffs alleged purchase solicitation for the court, Mary Chrzanowski, J., specifying cocaine. The A. without 2.116(C)(7) ruling whether it was on the motion under MCR 2.116(0(10), genuine held that there were issues of fact material precluding summary disposition. Taylor appealed right. as of Appeals
The Court of held-. 7.215(J) requirement 1. for the But in MCR that the Court must prior binding Police, followthe decisionin Newton v State (2004), jurisdiction the Court find it would that has to consider appeal upon all claims incident to this action the defendant’s appeal right. However, requires as Newton Court treat appeal granted. the claims this as on leave The rationale for the disagreement with the Newton decision that awhen court denies governmental party’s summary disposition motion for it which governmental immunity, practical deny claims effect is to governmental immunity. Such an order is a “final” order from aggrieved party may appeal right. which an 7.203(A). 7.202(6)(a)(v);MCR plaintiff 2. The proper showing has failed to amake of false deposition testimony documentary arrest. The evidence estab- participate lish that did not in the arrest because monitoring drug operations he was undercover solicitation away several blocks at the time that two other officersencountered subsequently him. arrested Similarly, falsely 3. failed to establish he that was Taylor, by Taylor. imprisoned plaintiff did know had never not him, explain had and could not what involvement seen oath, Taylor, sought request under the case. To extent that lengthened this conduct warrant authorization jail, probable during cause *2 was detained in time which the Taylor’s presentation request supported the for warrant autho- of circumstances, Taylor totality had the of the rization. Under request probable to to the for warrant authorization cause swear against presumptively plaintiff on rehable infor- the basis by provided the law enforcement to him undercover mation relayed by the the undercover officers to because facts officers Taylor probable drugs, plaintiff cause that the solicited established request allegations in the for warrant authorization consisted the by officers, Taylor of undercover affirmed the observations the those officers he he received relevant information from when that the warrant swore to authorization. of to establish his claim malicious 4. The failed Taylor prosecution against Taylor. is no that There evidence swore against request the with for warrant authorization the justice. purpose bringing than an offender to malice or for other Moreover, Taylor probable cause that had to believe alleged request crime in the for warrant autho- committed the rization. plaintiffs of intentional infliction emotional 5. The claim allege specificity any actions fails because does not with distress he respect Further,
by Taylor intent or recklessness. with sought Taylor request for establishes that warrant evidence presumptively on the credible information authorization basis officers, supplied which amounted to fellow law enforcement probable plaintiffs for cause arrest. Taylor qualified plaintiffs is 6. entitled to liability brought allegations supervisory of unlawful arrest and deposition testimony of the under 42 USC 1983. The unrebutted plaintiff, Taylor, officers and other law enforcement establishes arrest, Taylor Taylor was not in the involved request for cause to swear to the warrant authori- had zation, supervisor of the other law and that was not plaintiff. arrested the enforcement officers that Reversed. correctly Boerello, J., dissenting, the trial court stated that genuine fact are issues of material that should
ruled that there fact, majority proceed enlarges trier and that to the by eliminating jurisdiction scope the distinctions of this Court’s 2.116(C)(7) brought and one under a motion under MCR between 263 MICH Opinion of the Court 2.117(C)(10). Taylor’s Where the trial court denied motion finding genuine on the basis its issues of material fact regarding governmental whether was entitled immu- 2.117(C)(10). nity, is a determination under MCR appeal right cannot file a claim of as of from such an order (v) 7.202(6) (a) because it not a is final order under MCR 7.203(A)(1). Rather, Taylor required application to file an for appeal. leave to (by Gibson), Group, The F.L. Gibson P.C. L. Fred plaintiff. Goodman) (by Clark Hill PLC H. Neil for Robert Taylor. Attorney Casey, Cox,
Michael A. General, Thomas L. General, Farrell, Solicitor and James T. At- Assistant torney Margosian. General, for Richard P.J.,
Before: and TALBOT JJ. SAAD, BORRELLO, *3 underlying J. This case arises from the TALBOT, Stanley by arrest detention of T. Walsh defendant law enforcement officers Robert Margosian charge Richard on a solicited drugs. purchase illegal magistrate of A later dis- charge. Taylor appeals missed Defendant as of right denying the circuit court’s order for motion summary disposition premised governmental im- munity. We reverse.
I argues by first that the court circuit erred denying summary disposition plain- his motion for of imprison- tiffs state law tort claims of false arrest and prosecution, ment, malicious and intentional infliction undisputed of emotional distress. He asserts that facts demonstrated that he had cause for 621 v the Court of (RWA) authorization for warrant swearing request cocaine. solicited allegation dispo- summary novo a circuit court’s review de We Bd Michigan v Univ ruling. Maskery sition (2003). 165 609, 613; 664 NW2d 468 Mich Regents, pursuant summary disposition Taylor moved 2.116(C)(7) (C)(10). Although Taylor sought MCR govern- on the basis summary disposition, part, MCL by immunity provided immunity, mental 691.1407(2) tort an to an intentional apply does not alleged such as is employee, governmental individual Mills, App v Lavey in this case. by plaintiff Hamtramck, (2001); Sudul v 639 NW2d 486-488; 455, 458, 481, 562 NW2d 221 Mich App for its did not the basis specify The trial court pursu- motion Taylor’s denied apparently ruling, but the factual 2.116(0(10), tests to MCR which ant Trans- Dep’t claim.1 Spiek of a support (1998). In 337; Mich 572 NW2d portation, 2.116(0(10), this Court under MCR reviewing a motion affidavits, admissions, pleadings, considers the in the of record documentary evidence other relevant to deter- nonmoving party light most favorable fact exists of material any genuine mine whether issue trial. at 337. Spiek, supra to warrant a in this case. dispute jurisdiction do not parties however, in it, light of to address compelled areWe Police, Newton State a concluded that
(2004), in of this Court panel which where, al- right appeal claim an cannot party immunity, governmental asserts though party under summary disposition grants trial court *4 2.116(C)(10). of the decision part with that disagree We concerning questions all of of fact existed court found that The circuit plaintiffs claims.
Opinion of the Court Newton, and identify a conflict on the question 7.202(6) 7.203(A)(1).2 jurisdiction under MCR and MCR 7.215(J). MCR
The question jurisdiction always is within the scope review, of this Court’s In Knox, re Complaint of 255 Mich App (2003); MCR 7.216(A)(10). jurisdiction The of the Court of Appeals is law, provided by practice its and procedure are prescribed by the court rules and our Supreme Court. 1963, 7.202(6) 6, § Const art 10. See MCR and MCR 7.203. Unlike that of our Supreme Court or the circuit court, jurisdiction of this Court “entirely is statu- Milton, tory,” People 234, 224 NW2d (1974), generally limited to final judgments and orders. MCL 600.308.
In its exercise of prescribing this practice Court’s procedure, our Supreme Court has determined that a “final” judgment or order includes an appeal from an order denying governmental a governmen- tal party, including a governmental agency, official, or 7.202(6)(a)(v). employee. MCR question The of appel- 7.202(6) (a)(v) late review under MCR is a matter of procedure.3 6, Const art § 10.
2 We note that the court rule contains an error. MCR 7.203 states that jurisdiction this Court judgments has over final as defined in MCR 7.202(7). May 2004, 7.202(7) In MCR 7.202 was renumbered and MCR changed 7.202(6), was yet to MCR but MCR 7.203 has not been revised to change. opinion reflect that changes. Newton does not reflect these 3 Moreover, application of the question court rule does not raise a subject-matter jurisdiction; did, if it we could not exercise our discretion accept by granting a case leave on trial court orders that cannot be 7.205(D)(3). appealed right. Subject-matter jurisdiction as of in “ right judicial volves ‘the power of the court to exercise over that class of cases; particular it, not the power case before but rather the abstract try a case of the pending; kind or character of the one and not whether particular presents action, case is one that a cause of or under the *5 623 vWalsh Opinion of the Court then, question is procedure, As a question right has an as of generally party appeal whether panel intentional tort survive. The only when claims of right that there is no as of appeal in Newton concluded and, are disagree except in that We we situation. decision, 7.215(J), prior Court’s MCR bound this that, general rule, as a whenever a trial would conclude where summary disposition court rules on a motion for under color of governmental party acting there is a may appealed right the order be as of because authority, scope of action falls within the of MCR cause 7.202(6)(a)(v). rule, construing statutory a court the rules of
When
and common words must be under-
apply,
construction
ordinary
If a
plain,
meaning.
stood to have their
court
unambiguous,
rule
it must be enforced without
is
KH,
judicial
further
construction. In re
469 Mich
(2004).
628;
(a) officer, employee, member, acting The or volunteer is reasonably acting scope he or believes she is within the authority. of his or her
(b) governmental agency engaged the exercise *6 discharge governmental or of a function.
(c) The officer’s employee’s [or] ... . .. conduct does not gross negligence proximate amount to that is the cause of injury damage. subdivision, “gross As used in this negligence” means conduct so reckless as to demonstrate a substantial injury lack concern for whether an results. It is to important note that the purpose govern- mental immunity protect is to the governmental body, not only liability, from but from the trial itself. See Mitchell v Forsyth, 511; 2806; 472 US 105 S L Ct 86 Ed 2d 411 that, It is any axiomatic dispute where governmental body claims an immunity defense, the allege will their case is outside the scope immunity. Thus, most orders denying govern- mental immunity arise, will here, as did the one as a result of plaintiffs a allegations avoidance of immu- nity. However, a mere allegations are not enough to avoid the broad If sweep immunity. a trial court must let simply go a case forward whenever the plaintiff claims that intentional involved, torts are immunity illusory. Instead, would be we believe that whenever a plaintiff alleges facts in avoidance of immu- nity, or when a defendant claims that immunity applies, the trial court should obligated be to evaluate the specific conduct alleged to determine whether a valid exception exists. The potential of immunity is at the core of virtually any involving governmental case a Opinion of the Court Newton, reasoning in Thus, contrary to the party. ruling of the trial court’s specific basis regardless whenever the summary disposition, on a motion for immunity, claim of deny effect is to defendant’s fact, is, denying “an order trial court’s decision such a immunity.” Logic dictates that governmental 7.203(A). under MCR determination be reviewable (a)(v). 7.202(6) Tay- trial denied When the court case, effect of the practical lor’s motion in this claim of ruling deny Taylor’s governmen- court’s was to immunity. tal act, MCL 691.1401 et governmental em- great pains protect governmental “takes
seq., ployees enjoy degree to enable them to a certain jobs.” their Tarlea security they go performing about (2004) Crabtree, Mich App (citations omitted). noted, purpose As behind the permits governmental body appeal court rule that there a final judgment protect before is defendant, only liability, not but from the trial Mitchell, itself. at 511. do not that our supra We believe Court intended the court rule to be read so Supreme restrictively governmental bodies would be forced *7 through discovery and trial whenever their motion for grounds dismissal is denied on other than MCR 2.116(C)(7), merely because the contends that not immune. If we were governmental agency is slate, on a for Newton we would writing except blank immunity may find that a defendant who claims chal- lenge, right, plaintiffs alleged exception as of governmental immunity allegations when those result in MCR denying governmental immunity. an order 7.203(A). Otherwise, this, in the claim of a case such as “effectively plaintiffs could lost” when a immunity be immunity “erroneously in avoidance of were allegations Mitchell, go supra to trial.” at 526. Accord- permitted App 263 Mich Opinion of the Court Newton, conclude, ingly, but for we would on the clear rules, unambiguous language that, of the court order, regardless of the basis for a lower court’s when- immunity ever that order denies to a governmental official, party, agency, employee, it is a final order 7.202(6) (a) that may appealed right. (v); be MCR 7.203(A). MCR case,
In this the court did not it specify was ruling Taylor’s on motion for summary disposition on governmental immunity, 2.116(C)(7), basis MCR and, fact, the court noted that summary disposition inappropriate was because there were questions of fact. However, Taylor asserted that he entitled to was immu- nity ruling the court’s indisputedly rejected Tay- defense, 691.1407, lor’s MCL and was an denying order him governmental immunity. Because we Newton, are required 7.215(J), do so instead finding have jurisdiction we to consider on all the appeal action, claims incident to this we have no choice but to consider the claims in this case as on leave Newton, granted, 658-659, supra at although we con- approach sider that unnecessary illogical. both
A respect With to the first half of plaintiffs count, first arrest, false plaintiff had to show that Taylor partici- pated illegal unjustified an arrest and that Taylor lacked probable cause to do so. Peterson Novel- ties, Inc v Berkley,
(2003). The deposition testimony and documentary
evidence in this
case establish that
had no
participation
July 22,
whatsoever
arrest
arrest,
2000. At the time of plaintiffs
Taylor was
monitoring undercover officers’ drug solicitations from
an
position inside
abandoned house several blocks
*8
op
Opinion
the Court
away
Margosian
from the location where
and Lieuten-
Krutell,
chief,
acting
police
ant Brian
Mt. Clemens
plaintiff
had their encounter with
that led to his arrest.
half
imprisonment,
plaintiffs
False
the second
of
count,
“an unlawful
on a per-
first
involves
restraint
liberty
son’s
or freedom of movement.” Peterson Novel-
ties,
17,
K
citing
at
Clarke v mart
197 Mich
supra
Corp,
(1992).
541, 546;
App
In this no evidence any in manner in the pated transportation 22, 2000, the or the jail July booking plaintiff, placement jail pending inside a cell arraignment hearing. According plaintiffs and bond (Krutell) testimony, the tackled deposition officer who him, him on the sidewalk of Gratiot Avenue detained him, and, later at the placed police handcuffs on station declined to consider the coso- protestation plaintiffs licitor, Nelson, Greg only ciga- that he had obtained a plaintiff. spent rette from Plaintiff then approximately jail July two before he a reduced bond on days posted him, 2000. Plaintiff did not never saw Taylor, know explain and could not what involvement had in Taylor’s only his case. involvement deten- already jailed, tion occurred after had been Taylor, charge processing paper- when the officer during for all arrests COMET the weekend of work op the Court *9 21-22, 2000, request to a July presented prosecutor (EWA) against plaintiff, for warrant authorization swore regarding veracity before a court clerk of the felony in the or a similar information contained RWA complaint, plaintiff arraigned. Assuming and had resulted, Taylor’s plaintiffs actions after detention in directly indirectly, continued confine- ment, the question probable becomes whether cause Taylor’s supported presentation against RWA plaintiff. “Probable cause involves determination of both the historical facts and whether the rule of law as to applied the facts is violated.” Matthews v Blue Cross & Blue 365, 377; Michigan, Shield 456 Mich (1998). probable question “[W]ant of cause is a law by be determined the court. Where the facts on which in the issue turns are dispute, question is for the “ (citation omitted). jury.” Id. at 381-382 ‘To constitute , probable cause. . . there must such be reasonable ground of suspicion, supported by circumstances suffi- in ciently strong themselves to warrant an ordinarily cautious man the belief that the person arrested is ” guilty Matthews, of the charged.’ offense at supra 387-388, quoting Bowen, Wilson NW “Probable cause ... is a commonsense concept dealing practical every- with considerations of day life that must be viewed from the perspective of reasonable and prudent persons, legal not technicians.” Novelties, Peterson supra at 19.
After considering many depositions, police re- and other ports, documentary items of evidence pro- vided the parties, totality we conclude that the of the surrounding plaintiffs circumstances interaction with during early morning July 22, 2000, Nelson hours of provided a sufficient basis which Krutell and Margosian had cause to arrest Court Krutell, July who According cocaine. solicitation and had police veteran twenty-two year was a approxi- at with occasions on numerous worked COMET, an unmarked July he sat A.M. mately 2:00 where the from the intersection three car blocks police The muffled drug dealers. posed officers undercover attention Krutell’s drew of a conversation sounds Nelson, who bike, Gregory a man on fifty feet twenty-five and between on the sidewalk stood conversation car. The police from the unmarked away Kru- something that said ended after quickly heard Nelson Krutell then decipher, not tell could east his bike rode “I’ll back.”5 Nelson right be reply, officers undercover intersection where toward the *10 seconds, thirty twenty-five dealers. For drug posed on the spot in the same standing remained plaintiff Krutell Nelson. had encountered where he sidewalk police himself as a identified approached plaintiff, then identification, plaintiff frisked for officer, plaintiff asked on the to down sit plaintiff and asked weapons, had plaintiff could determine whether until he sidewalk through cocaine Nelson.6 purchase solicited veteran time, sixteen-year police state a short Within appeared Margosian team leader narcotics and COMET to attempted had informed Krutell Nelson and officers, the undercover cocaine from crack purchase had arrested Nelson. When other officers and that he had observed what relayed Margosian to Krutell away testified, that, from rode believed as Nelson he As Krutell Although plaintiff right testified plaintiff, back.” plaintiff, “I’ll be he told dog,” said, the determina contrary out “Good lookin’ that Nelson to the depends facts as the officer on the probable exists cause tion whether Champion, 549 NW2d People perceived them. drinking, and been inquired plaintiff whether he had Krutell process of in the replied six beers was plaintiff he had consumed walking to his house. MICH 618 Court Nelson, Margosian heard between directed Krutell to arrest for solicitation to deliver cocaine.7
Under
undisputed
these
showing
circumstances
plaintiffs brief encounter with biker
at
Nelson
2:00 A.M.
through
as he walked
a
crime
high
drug
area known for
activity,
followed Nelson’s immediate solicitation of
officers,
crack cocaine from the undercover
while plain
simply
tiff
on the
stood
sidewalk where he had encoun
Nelson,
tered
apparently awaiting
return,
con
we
clude that well-experienced police officers Krutell and
Margosian
possessed
reasonable
suspicion
plain
tiff
agreed
had
with
to
Nelson
solicit cocaine
from
undercover officers. People Levine,
information furnished acted, private prosecutor which the false and was the information (emphasis original). person procured prosecution.” Id. at 385 has not Court
C Multiple summary reasons warrant disposition intentionally count that inflicted emo- To a prima tional distress. establish facie claim of distress, infliction intentional of emotional the plaintiff (1) present must evidence of the defendant’s extremé (2) conduct, outrageous the defendant’s intent or (3) (4) recklessness, causation, and the severe emotional Moore, distress of the plaintiff. supra “Liability at 389. attaches can only when demonstrate defendant’s conduct is outrageous character, ‘so so extreme in degree, go beyond as all possible decency, bounds of regarded to be atrocious ” utterly in a community.’ intolerable civilized Lewis LeGrow, 258 Mich App (2003), Ford, quoting Graham Mich App 670, 674; (1999). First, NW2d 713 count VI of plaintiffs complaint *14 to allege any by fails with specificity Taylor actions with recklessness, intent or and thus fails to state a valid 2.116(C)(8). Second, claim for relief. MCR the because in evidence this case indisputedly reflects that Taylor an pursued against arrest warrant the basis of presumptively credible information that he obtained from fellow Margosian, officers Krutell and which amounted cause for plaintiffs arrest, aas matter of law he cannot be liable for intentional inflic- tion of emotional Belleville, distress. Cebulski v 156 (1986) App 190,196; NW2d (observing, of its support finding police that a officer could not be liable for intentional infliction of emotional distress arising from proper ticket, his issuance of a speeding liability could not be based on the officer insisting on his legal right even permissible way, he though have might been aware that such certainly insistence distress). would cause emotional Walsh v op the Court
II the court should have argues that circuit next summary plain- of disposition motion for granted his the asserts that under USC 1983. tiffs claims qualified immunity undisputed facts establish and supervi- arrest allegations of unlawful de the circuit court’s sory again review novo liability. We at 337. disposition ruling. Spiek, supra summary 1983, any experi- to 42 who According person USC immu- any rights, privileges, or deprivation ences “the laws” nities the Constitution and because secured any “under color of person acting the actions of another statute, ordinance, usage, any regulation, custom seeking against party file an may State” action relief “In a deprivation. against an officer caused suit right,” how- for an violation of a constitutional alleged ever, may qualified officer invoke defense standing trial. Saucier immunity to avoid the burden L 2d Katz, 194, 200; 121 S Ct 150 Ed 533 US de- Saucier, Supreme In the United States Court applying qualified scribed follows the standard for immunity: required upon qualified A rule court consider, then, question:
issue this threshold Taken must light party asserting injury, to the do most favorable alleged violated a con- the officer’s conduct facts show right? ... stitutional made view ... a violation could be out on a favorable [I]f *15 submissions, next, sequential step the is to parties’
of the right clearly inquiry, This established. ask whether the was note, light specific undertaken in of it is must be vital case, general proposition; and not as a broad context of
Opinion of the Court understanding it... serves to advance and to law qualified if allow officers avoid burden trial applicable. is litigation, instance, In this is [of]. there no doubt .. general proposition contrary that the of force is use objective the Fourth if it Amendment is excessive under enough. standards reasonableness. that Yet is not Rather, emphasized.. right we . “that the official is alleged to ‘clearly have violated must been have estab- particularized, lished’ in a more and hence relevant more right sufficiently sense: The contours be must clear that a reasonable official would understand that what he is relevant, doing right.” dispositive inquiry violates determining right clearly whether established is it whether would be clear to a reasonable that his officer conduct was in the situation he unlawful confronted. [Saucier, supra added; (emphasis at 201-202 citations omitted).] slightly differently, § Stated in a attempting qualified immunity action to overcome establishing bears the burden of that a “reasonable position defendant[’s] [not] official in the could have Cope Heltsley, believed his conduct was lawful.” (CA 1997) (citations omitted). 452, 128 F3d The first consideration therefore whether, involves light plaintiff, taken in most favorable to the actions veracity swearing to the of the RWA violated plaintiffs rights. justify constitutional To the invasion right of an individual’s Fourth Amendment to remain against secure seizures, unreasonable searches and government generally official must obtain a warrant supported People cause. v Kazmierczak,461 complaint VII Count amended asserts Margosian, Krutell, violated his Fourth (1) rights by “[directing Amendment the arrest of [p]laintiff knowing any he had not committed unlawful *16 Taylor op Opinion the Court (2) “[thereafter, intentionally, knowingly act(s),” and refusing notify appro- willfully failing and and/or any had not committed [p]laintiff that priate officials act(s) omission(s) that a violation of or constituted Michigan.” respect to the first of the of With laws state Kru- testimony of deposition the unrebutted allegation, that tell, Margosian, Taylor and establishes plaintiff, 22, July arrest on plaintiffs was not involved allegation that encom- To the extent the second 2000. facts within the Taylor’s swearing to the passes RWA, the term of helped lengthen plain- presumably which imprisonment false violation allegedly tiffs Amendment,11 the undisputed facts establish Fourth do so on the of Taylor had cause to basis probable that information he received reliable presumptively Margosian regarding plaintiff from Krutell and drugs to solicit from the undercover attempt Nelson’s officers. complaint amended asserts
Count IV minimum, implicitly [defendants “at a one of the authorized, knowingly acquiesced approved [defendants, each the other unlawful conduct officers, conduct, acts unlawful being subordinate such fully are herein.” more described omissions and/or evidence indicates that both The unrebutted assigned of lieutenants Margosian occupied status Taylor’s swearing did not If to the facts within the action RWA plaintiffs imprisonment prolong in violation of the Fourth and seizure Amendment, merely § not a valid 1983 claim on could state prosecution Taylor participated him. This in a malicious basis that Supreme recognized the United States Court’s determination Court has not under prosecution cause is actionable that “a without process rights § due under 1983 as a violation of substantive 1983, plaintiff § Amendment,” prevail under that “to Fourteenth independent improperly prosecuted must show and arrested some who is Payton by right protected or federal law.” of a the constitution violation Detroit, App Dissenting J. Borrello, force, to the COMET supervised task both narcotics teams, neither had supervisory authority over the other, Commander and both answered to Charles Schu- macher, Furthermore, COMET’s leader. no facts tended to July 22, establish COMET Lieutenant any Krutell, had supervisory authority over who occupied also positions of lieutenant acting chief of the Department. Mount Clemens Police
Under these circumstances, undisputed we conclude that the circuit erred by denying court motion Taylor’s summary for disposition § of plaintiffs 1983 claims 2.116(0(10). pursuant to MCR Reversed.
SAAD,P.J., concurred. BORRELLO, J. (dissenting). I respectfully dissent majority the opinion this matter because there are questions of fact proceed that should to the trier of fact. Accordingly, I would affirm the decision of the trial court for the reasons the trial court stated on the record.
I strongly dissent from the majority’s attempt the enlarge scope of this jurisdiction. Court’s I addition- ally dissent because I believe that this correctly Court asserted the application of the court rules at issue in Police, Newton State 263 Mich App NW2d The majority contends that when a trial court denies summary motion for disposition on any basis where the governmental defense of raised, could be this Court acquires jurisdiction to review all matters 7.203(A) 7.202(6)(a)(v). under MCR and MCR majority states: do Supreme
We not believe that our Court intended the court rule to restrictively governmental be read so that Dissenting J. Borrello, through discovery and trial when- be
bodies would forced grounds other is denied ever their motion dismissal 2.116(C)(7), merely the con- because than MCR [Ante is at governmental agency not immune. tends that the added).] (emphasis stated, majority the be- if not Impliedly, outrightly the scope facts outside plaintiffs allege lieves that governmental immunity simply avoid governmental not the of action is based because cause immunity, not, clear intended or in law fact. Whether act Court must now majority is this message onslaught frivolous guardian against perceived as a ill- seemingly our trial courts are litigation that majority’s Accordingly, reject discover. I equipped to a frivolous claim filing contention immunity. governmental simply to avoid defense litigation, an assuming onslaught Even frivolous to be empowered trial courts—not this Court—are frivolous claims. perceived initial of such adjudicators Court However, majority have this become would jurisdiction initial to decide matters court of level, giving at the court may have been raised trial not majority—that this implied rise to another belief *18 trier of fact. The of concept Court become a should fact, by trier of and not of fact tried questions being this Court, jurisprudence of this is still the of by panels state. inherent problems
Thomas Jefferson understood statutory attempt their author- expand when to courts ity when he wrote: and not more so. judges are as honest as other men
Our party, They passions for the same have with others power, privilege corps. their Their maxim is and the of justice [good jurisdictionem is judiéis ampliare boni est dangerous power more jurisdiction], their broad responsible, as the they in for life and not are office App Mich Dissenting by Borrello, J. are, other functionaries Con- to elective control. The tribunal, single knowing stitution has erected no such confided, to corruptions that whatever hands with the party, despots. time its members would become It has wisely departments co-equal more made all the and co- sovereign eds, [Lipscomb Bergh, within & themselves. Writings (Washington D.C.; The Thomas Jefferson Ass’n, 1903-1904), 15, p Thomas Jefferson Memorial vol Jarvis, Letter Thomas Jefferson to C. William 1820.] Court distinguish
This has taken great pains among brought 2.116(C)(7), (C)(8), motions under MCR (C)(10). Comm, v Alpena Wilson Co Rd Similarly, NW2d 380 panel Newton stated: plain language rules, interpreted court these in a fashion,
common-sense us leads to conclude that this applies only exception to situations where the denial summary directly disposition finding is based on a moving party government[al] immunity not is entitled where, and not to a although govern- situation claima asserted, mental has been the trial court denies summary disposition a party opposing motion because the summary disposition a has stated sufficient factual case summary disposition—in words, case, avoid other as in this actually disposed where the 2.116(C)(10) motion of as a MCR (C)(7) [Newton, motion rather than motion. supra at 257.]
The Newton Court understood that there are differ- C(7) C(10) ences between The majority motions. this would case eliminate such distinctions. This Court correctly in Newton stated and case, part, decided the Newton, these distinctions. As this Court stated in supra at 259: opinion, legal
In our the trial court did make not concerning determination whether was defendant entitled governmental immunity. Instead, to claim the trial court Dissenting WALSH *19 V TAYLOB by Borrello, J. genuine issues determination that there were made a Therefore, trier of fact. to be material fact resolved C(10) determina- appeal in this case was taken from C(7) order from than a determination. tion rather appeal not a an was therefore defendant claimed which 7.202(7)(a)(v) and MCR final order under 7.203(A)(1). by the Accordingly, required defendant was appeal application leave to rather to file an court rules appeal. than a claim of finding has not made a
Thus, where a trial court immune, it is governmentally a defendant whether However, do the defen- for this Court to so. premature raising precluded in Newton were not dants have immunity. They could governmental defense of by filing an this Court to decide issue asked for I Accordingly, for leave to dissent. appeal. application