Preview:

STATE OF MICHIGAN COURT OF APPEALS

MICHAEL MCCARTHY, Plaintiff-Appellant, v BROWNSTOWN TOWNSHIP, DIANE L. PHILPOT, and EDWIN C. NEAL, Defendants-Appellees.

UNPUBLISHED April 20, 2010

No. 289651 Wayne Circuit Court LC No. 07-731430-NZ

Before: MARKEY, P.J., AND ZAHRA AND GLEICHER, JJ. PER CURIAM. Plaintiff appeals by right the trial court's order granting summary disposition to defendants regarding his claims of defamation, intentional infliction of emotional distress, interference with advantageous economic expectations, and civil conspiracy. The trial court ruled that the individual defendants as trustees of Brownstown Township and the defendant township itself were immune from tort liability under MCL 691.1407(1) and (5). Defendants were therefore entitled to summary disposition under MCR 2.116(C)(7). Alternatively, the trial court ruled that even if defendants were not immune, plaintiff had failed to create material questions of fact regarding the necessary elements to establish his tort claims; therefore, defendants were entitled to judgment as a matter of law under MCR 2.116(C)(10). We agree with the trial court that defendants were engaged in a governmental function--oversight of the township's police department--and that plaintiff has neither pleaded nor produced evidence in avoidance of immunity. We affirm. I. SUMMARY OF FACTS This case arises from a series of incidents that plaintiff infers defendants orchestrated to intimidate and harass him.1 Plaintiff is a longtime police officer employed by the Brownstown

Community disputes regarding police union activity, unsuccessful recall campaigns, plaintiff publicly criticizing the defendant trustees, internal police department investigations leading to the resignation of some officers, as well as FBI investigations leading to indictments, regarding police leaks, provide additional backdrop for plaintiff's conspiracy theories.

1

-1-

Township police department who held the rank and position of detective. In June 2006, plaintiff was working with the Federal Bureau of Investigation (FBI) investigating alleged criminal activity of a motorcycle gang. Another Brownstown police officer observed plaintiff and an FBI agent meeting with a "scruffy biker type" who, unknown to the officer, was an informant in the motorcycle gang investigation. From talk among police officers, this meeting apparently became widely known in the police department. Many of the Brownstown police officers belonged to their own motorcycle club and frequented places that members or associates of the outlaw gang also frequented. In July 2006, the informant allegedly observed Dennis Abraham telling the leaders of the outlaw gang that plaintiff was meeting with a "snitch." On learning this, plaintiff and his FBI partner picked up Abraham, took him to a federal building, and interviewed him. At the time of these events, defendant Philpot was a trustee and the treasurer of defendant Brownstown Township; defendant Neal was also a trustee, and a former Brownstown Township police officer. In November 2006, Brownstown Township police Lt. Steve Nemeth informed Philpot that Abraham wished to complain about police misconduct but was afraid to bring his complaint directly to the police department. Lt. Nemeth indicated Abraham wished to bring his allegations to Philpot and Neal, who agreed to meet with Abraham. The substance of Abraham's claims were that during the July 2006 interview, plaintiff appeared to have been drinking, that plaintiff and his FBI partner took Abraham to a basement "dungeon" of the federal building, that plaintiff and his FBI associate asked Abraham about "dirty cops," and that at one point, plaintiff displayed his weapon by pulling up his shirt and lifting it from his waistband. Philpot and Neal recorded Abraham's allegations regarding the July interview on a DVD, which they forwarded to the Michigan State Police (MSP). The state police informed defendants that because the interview occurred on federal property, it was within the FBI's jurisdiction to investigate Abraham's allegations. A second incident that is part of plaintiff's tort claims occurred in late November 2006. A fellow Brownstown Township police officer stopped plaintiff on suspicion of drunk driving. But plaintiff was not offered or administered a portable breath test; no sobriety tests were performed, and on instructions of the supervising sergeant who was called to the scene, plaintiff was driven home. Brownstown Township police department incident report 2006-00022832 simply states: OLDER RED F-150 POSSIBLE OWI WB SIBLEY FROM TELEGRAPH. The trial court in its December 10, 2008, opinion and order summarizes this incident and what followed (capitalization and some spelling modified):

On November 22, 2006, plaintiff, who was off-duty, was pulled over by Brownstown Township police officer Jason Mitteer for driving erratically on Telegraph Road. Plaintiff admitted drinking five to ten beers prior to being pulled over. The officers at the scene, Mitteer and Wheeler, did not conduct a field sobriety test or a portable Breathalyzer test. The officers called a supervisor, Sergeant Watson, who drove plaintiff home without issuing him a citation. Plaintiff subsequently had a disciplinary meeting regarding the incident and was referred to an alcohol counselor, with whom he failed to follow up. On December 27, 2006, former chief Daniel Grant was informed that officers Mitteer and Wheeler still wanted to file reports and seek possible
-2-

charges against plaintiff. Chief Grant responded that the officers should take whatever action they thought appropriate. Officer Mitteer called Ms. Philpot and told her that he had pulled plaintiff over on suspicion of drunk driving, that plaintiff had "almost killed" officer Wheeler, that plaintiff had not received a citation and that Mitteer and Wheeler were told to leave the scene by their commanding officer. Mitteer also told Philpot he was advised not to write a report but did not disclose who so advised. Ms. Philpot asked Chief Grant about the incident and specifically why there was no written report. Chief Grant said that the four officers at the scene agreed they would take plaintiff home and do nothing further. After Ms. Philpot informed Chief Grant that she had been contacted by one of the officers who wished to write a report, Chief Grant promised to look into the matter. Ms. Philpot also contacted the township attorney. Ms. Philpot forwarded to officer Wheeler an email from Chief Grant to [township attorney Stephen] Hitchcock, allowing the officer to write a report and take any appropriate action regarding the incident. On March 19, 2007, a local business owner, whose son had been prosecuted for a DUI in Brownstown, came to a board [of trustees] meeting to discuss an anonymous letter alleging a township officer received preferential treatment relating to a DUI stop. Ms. Philpot subsequently moved to investigate the alleged misconduct and to allow the township attorney access to the evidence. Attorney Hitchcock found no potential criminal violations by officer Wheeler or officer Mitteer because they did not make the decision on how to proceed. Based on the recommendation of the township attorney, the board passed a resolution referring the alleged DUI incident to the MSP. The board also directed attorney Hitchcock to request the MSP forward the results of their investigation to the board to review for potential criminal violations. Captain Clark of the MSP informed the township he could not investigate as the request did not come from an appropriate source, but he also concluded that the incident did not warrant criminal investigation because it had occurred almost a year ago, there was no physical evidence and "administrative action was taken with other personnel." In light of this lawsuit, the board removed the matter from its January 2008 agenda.
Other grounds for plaintiff's tort claims include his suspicion that some township police officers were conducting surveillance of him at the direction of defendants, but plaintiff admitted he had no evidence to support this claim other than his belief that he was being watched and that officer Mitteer provided information to Philpot. Likewise, plaintiff admitted that no direct evidence supported his claim that Philpot orchestrated the local businessperson's complaint. Plaintiff only suspected this based on Philpot's earlier contact with chief Grant and officer Mitteer, and because Philpot knew the complainant as a businessperson in the community. Plaintiff also touts as evidence of a conspiracy the opinion of one trustee that investigating alleged police misconduct was a "witch hunt." Plaintiff additionally cites Philpot's subsequent -3-

letters of recommendation for some former officers who resigned as a result of the internal investigation of the leak regarding plaintiff's informant, and the businessperson's political support for Neal and Philpot.

After extensive discovery, defendants moved for summary disposition on the basis of governmental immunity, MCR 2.116(C)(7), and on the basis that plaintiff had failed to produce evidence that he could support his tort claims at trial, MCR 2.116(C)(10). The trial court heard arguments of counsel on the motions on November 14, 2008. The court issued its ruling in favor of defendants on both grounds they asserted in an opinion and order dated December 10, 2008. Plaintiff brings this appeal by right.
II. STANDARD OF REVIEW We review de novo a trial court's determination to grant or deny summary disposition to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A motion for summary disposition under MCR 2.116(C)(7) may assert that a claim is barred by immunity granted by law and may be supported or opposed by affidavits, depositions, admissions, or other documentary evidence. Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008). The allegations of the complaint are accepted as true unless contradicted by documentary evidence. Maiden, supra at 119. The motion is properly granted when the undisputed facts establish the moving party is entitled to immunity granted by law. Id. at 118; MCR 2.116(I)(1). When considering a motion brought under MCR 2.116(C)(10), the court must view the proffered evidence in the light most favorable to the party opposing the motion. Maiden, supra at 120. But MCR 2.116(G)(4) requires that "[w]hen a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise . . . , set forth specific facts showing that there is a genuine issue for trial." A litigant's mere promise to produce evidence at trial to support its claims is insufficient to survive a properly support (C)(10) motion. Maiden, supra at 120-121. Thus a trial court must grant the motion when the proffered evidence fails to establish any genuine issue of material fact and the moving party is entitled to judgment as a matter of law. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." Id. III. ANALYSIS Except for certain limited statutory exceptions, MCL 691.1407(1) grants tort immunity to governmental agencies "engaged in the exercise or discharge of a governmental function." We must broadly construe governmental immunity and narrowly construe its exceptions. Hinojosa v Dep't of Natural Resources, 263 Mich App 537, 544; 688 NW2d 550 (2004). None of the six statutory exceptions applies to the facts of this case. A "governmental function" is an activity expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law. MCL 691.1401(f); Maskery v University of Michigan Bd of Regents, 468 Mich 609, 613-614; 664 NW2d 165 (2003). In this case, the Charter Township Act, MCL 42.1 et seq., provides for the establishment of a 7-member -4-

governing board "composed of the supervisor, the township clerk, the township treasurer, and 4 trustees." MCL 42.5. The act also authorizes the township board to "provide for and establish a police force . . . ." MCL 42.12. And, further, "[t]he township board shall make all necessary rules for the government of the township police force and its members and shall prescribe the powers and duties of policemen . . . ." Id. We are required to liberally construe the authority granted by these statutory provisions in favor of the township to "include [powers] fairly implied and not prohibited by [our] constitution." Const 1963, art VII,

Download MICHAEL MCCARTHY V TOWNSHIP OF BROWNSTOWN.pdf

Michigan Law