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STATE OF MICHIGAN COURT OF APPEALS
CRAIG T. STEVENS and JORDAN A. STEVENS, Plaintiffs-Appellants, v BRUNO MOSER LIVING TRUST, KENNETH S. MACK, ANN P. MACK, JACK JOSTOCK, RYAN DOYLE, and LAPEER COUNTY ROAD COMMISSION, Defendants-Appellees. No. 298167 Lapeer Circuit Court LC No. 07-039043-CZ UNPUBLISHED September 22, 2011

Before: SERVITTO, P.J., and MARKEY and K.F. KELLY, JJ. PER CURIAM. Plaintiffs appeal as of right from an order granting defendants Mack and Moser summary disposition. Plaintiffs are also appealing a prior order that granted summary disposition in favor of defendants Lapeer County Road Commission (LCRC), Jostock and Doyle. We affirm in part and reverse in part. I. PROCEDURAL BACKGROUND Plaintiffs and defendant Macks are adjoining landowners. Plaintiffs filed a complaint for quiet title against defendants Mack and the Macks' predecessor in interest, defendant Moser, alleging that plaintiffs had obtained title to a triangular parcel of land between the two properties by way of adverse possession and acquiescence. Plaintiffs alleged that they were able to "tack on" to the time that their predecessor in interest maintained the disputed parcel as part of the improved portion of plaintiffs' driveway, resulting in a fifteen-year period of continuous hostile use. Plaintiffs also filed claims for trespassory nuisance and negligence against LCRC and its employees, Jostock (foreman) and Doyle (assistant engineer), arguing that the installation of a culvert and drainage system pursuant to a private contract with the Macks created unnatural water conditions and accumulations on plaintiffs' property. The trial court granted summary disposition in favor of defendants LCRC, Jostock and Doyle, finding that plaintiffs' claims were barred by the doctrine of governmental immunity and rejecting plaintiffs' claims that the work was non-governmental and proprietary in nature.

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The trial court later granted summary disposition in favor of defendants Mack and Moser, finding that plaintiffs failed to show a claim under either adverse possession or acquiescence. Plaintiffs now appeal as of right. II. GOVERNMENTAL IMMUNITY Plaintiffs first argue that the trial court erred in granting defendants LCRC, Jostock and Doyle summary disposition. Plaintiffs claim that the work performed by those defendants was the result of privately negotiated contract between LCRC and defendants Mack. LCRC performed the work, not because it was necessary for the public's good, but because of a private contract between the parties; therefore, it was not a "governmental function." Additionally, plaintiffs argue that the work performed was proprietary in nature in that it was meant to produce a profit. Plaintiffs allege that because governmental immunity was inapplicable to LCRC, individual defendants Jostock and Doyle were similarly liable. We disagree. Summary disposition was requested pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10). In rendering its decision, the trial court looked beyond the mere pleadings, an indication that it was relying on either MCR 2.116(C)(7) or (C)(10). Capitol Properties Group, LLC v 1247 Center Street, LLC, 283 Mich App 422, 425; 770 NW2d 105 (2009). Summary disposition pursuant to MCR 2.116(C)(7) is appropriate when, viewing the evidence in a light most favorable to the nonmoving party, the moving party demonstrates that a claim is barred because of immunity granted by law. MCR 2.116(C)(7); Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008). The moving party under a MCR 2.116(C)(7) motion may present affidavits, depositions, admissions, or other documentary evidence in support of its motion, and the contents of the complaint are deemed fact unless contrary evidence is presented. Odom, 482 Mich at 466. Summary disposition under MCR 2.116(C)(10) is appropriate only when the moving party can demonstrate there are no genuine issues of material fact and it is entitled to judgment as a matter of law. Rose v Nat'l Auction Group, Inc, 466 Mich 453, 461; 646 NW2d 455 (2002). The applicability and interpretation of statutes addressing governmental immunity are questions of law that are reviewed de novo on appeal. County Rd Ass'n of Mich v Governor, 287 Mich App 95, 117-118; 782 NW2d 784. MCL 691.1407(1) provides that, "[e]xcept as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function." "Governmental function" is defined in MCL 691.1401(f) as "an activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law." There is no question the county road commissions are authorized to do the type of work performed in this case. MCL 224.19(1) provides: "[t]he board of county road commissioners may grade, drain, construct, gravel, shale, or macadamize a road under its control, make an improvement in the road, and may extend and enlarge an improvement. The board may construct bridges and culverts on the line of the road, and repair and maintain roads, bridges, and culverts." Plaintiffs allege that these defendants behaved in a manner that removed them from the scope of government immunity. While defendants may have been statutorily authorized to do -2-

the work in question, plaintiffs claim the work was the result of a private contract with defendants Mack and was, therefore, outside the protection of governmental immunity because it was no longer a "governmental function." Plaintiffs cite Pardon v Finkel, 213 Mich App 643; 540 NW2d 774 (1995), in support of their argument. In Finkel, this Court found that governmental immunity did not apply to a situation in which county sheriff deputies were used as security crowd control during concerts at a private facility because "the relationship between the county and Pine Knob was akin to that of a private security guard situation, and thus the county was engaged in a nongovernmental function, thereby precluding the immunity defense." Pardon, 213 Mich App at 648. This Court admonished that, in determining whether an agency is engaged in a governmental function, "the focus must be on the general activity, not the specific conduct involved at the time of the tort." Pardon, 213 Mich App at 649. Because the general activity was crowd control and was the result of a private agreement, duty to the public was not implicated and the deputies were acting outside of the scope of immunity. Id. Pardon is distinguishable from the case at bar. Here, defendants LCRC, Jostock and Doyle were clearly performing work within the ambit of MCL 224.19(1). There are absolutely no allegations that these defendants were working outside of the scope of the statute. There is nothing in plaintiffs' pleadings to indicate that defendants LCRC, Jostock and Doyle were doing anything other than what they were authorized to do by statute. Alternatively, plaintiffs argue that, even if the work performed fell within the ambit of "governmental function," the contract was entered into for the primary purpose of pecuniary profit, removing it from the protection of immunity. MCL 691.1413 provides: The immunity of the governmental agency shall not apply to actions to recover for bodily injury or property damage arising out of the performance of a proprietary function as defined in this section. Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary profit for the governmental agency, excluding, however, any activity normally supported by taxes or fees. Thus, even if it can be shown that an agent was acting within the realm of a governmental function, immunity does not apply if it can also be shown that the activity constituted the performance of a proprietary function. Hyde v University of Mich Bd of Regents, 426 Mich 223, 253-254; 393 NW2d 847 (1986). However, "only activities which are conducted primarily for the purpose of producing a pecuniary profit, and which are not normally supported by taxes or fees, are proprietary functions under

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