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STATE OF MICHIGAN
COURT OF APPEALS


VIRGINIA CLULEY and DAVID CLULEY, Plaintiffs-Appellants, v LANSING BOARD OF WATER AND LIGHT and JOHN ELASHKAR, Defendants-Appellees.

UNPUBLISHED March 7, 2006

No. 264208 Ingham Circuit Court LC No. 03-002186-CK

Before: Meter, P.J., Whitbeck, C.J., and Schuette, J. PER CURIAM. In this employment dispute, plaintiffs Virginia Cluley and David Cluley (the Cluleys) appeal as of right from the trial court's order granting summary disposition in favor of defendants Lansing Board of Water and Light and John Elashkar with respect to Virginia Cluley's claims for defamation, intentional infliction of emotional distress, interference with a contract, breach of contract, and sex discrimination claim under the Elliott-Larsen civil rights act (CRA),1 and David Cluley's derivative claim for loss of consortium. The Cluleys also challenge an earlier trial court order granting summary disposition in favor of defendants with respect to Virginia Cluley's claim alleging a violation of her constitutional rights. We affirm. I. Basic Facts And Procedural History Defendant Lansing Board of Water and Light (the BWL) is a public body, whose principal governing body is a board of commissioners appointed by the City of Lansing. Defendant John Elashkar retired from his position as assistant general manager for the BWL in 2000. The BWL subsequently rehired Elashkar as the BWL's interim general manager in November 2002, pursuant to a written contract that gave him the customary authority and duties of an officer and general manager of the BWL. Virginia Cluley, a long-time employee of the BWL, held the position of manager of customer accounts and collection services in June 2003, when she received a "notice of possible

1

MCL 37.2101 et seq.

-1-


disciplinary action" memorandum from Elashkar and Kellie Willson, an internal auditor, in connection with three business trips that Virginia Cluley took between October 2002 and April 2003. Following a hearing regarding the notice, Elashkar wrote a "disciplinary action" memorandum to Virginia Cluley in which he determined that she should be disciplined for violating various policies and directives. Elashkar instructed Virginia Cluley to reimburse the BWL a minimum of $3,048, and suspended her employment for 30 days without pay, with instructions that she report to the human resources department on her return on July 21, 2003, for appointment to a nonmanagerial position. Virginia Cluley did not return to work in July 2003, but rather went on medical leave. Elashkar retired from the BWL in September 2003, and was replaced by Sanford Novick as the BWL's general manager. Virginia Cluley was still on leave status with the BWL in December 2003, when she filed this action against the BWL and Elashkar, claiming that she had been constructively discharged. Virginia Cluley alleged claims against both defendants for defamation, sex discrimination under the CRA, breach of contract, violation of the Michigan Constitution, and violation of public policy. Virginia Cluley also alleged claims against Elashkar individually for intentional infliction of emotional distress and tortious interference with a business (contract) relationship, and against the BWL alone for negligent infliction of emotional distress. Virginia Cluley's husband, David Cluley, alleged a claim for loss of consortium against both defendants. Defendants moved for summary disposition of each of the claims under various different grounds. Following a hearing, the trial court entered an order partially granting defendants' motion under MCR 2.116(C)(8). The trial court dismissed Virginia Cluley's CRA claim with respect to Elashkar. The trial court also dismissed Virginia Cluley's claims alleging violation of her constitutional rights, violation of public policy, and negligent infliction of emotional distress. Virginia Cluley subsequently agreed to an early retirement from the BWL. Defendants thereafter filed a second motion for summary disposition, which was heard by a different judge. The trial court granted the motion and dismissed the Cluleys' remaining claims, relying on MCR 2.116(C)(7) (governmental immunity), MCR 2.116(C)(8) (failure to state a claim), and MCR 2.116(C)(10) (no genuine issue of material fact). The trial court denied the Cluleys' motion for reconsideration. II. Standard Of Review A motion brought under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the pleadings alone.2 The trial court should grant the motion only if a claim is "`so clearly unenforceable as a matter of law that no factual development could possibly justify recovery.'"3

2 3

MCR 2.116(G)(5); Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999).

Maiden, supra at 119, quoting Wade v Dep't of Corrections, 439 Mich 158, 163; 483 NW2d 26 (1992). -2-


A motion brought under MCR 2.116(C)(10) tests the factual sufficiency of a claim.4 The trial court considers the affidavits, pleadings, depositions, admissions, and other evidence, to the extent that the content or substance would be admissible as evidence, in a light most favorable to the nonmoving party.5 Where the proffered, admissible evidence fails to establish a genuine issue of material fact, the moving party is entitled to judgment as a matter of law.6 A trial court may grant summary disposition under MCR 2.116(C)(7) if a claim is barred because of immunity granted by law. Because governmental immunity is a characteristic of government, to survive a (C)(7) motion raised on these grounds, the plaintiff must have alleged facts warranting the application of an exception to governmental immunity.7 Neither party is required to file supportive material; any documentation that is provided to the trial court, however, must be admissible evidence.8 The plaintiff's well-pleaded factual allegations, affidavits, or other admissible documentary evidence must be accepted as true and construed in the plaintiff's favor, unless contradicted by documentation submitted by the movant.9 If the facts are undisputed and reasonable minds could not differ regarding the legal effect of those facts, the trial court may decide whether a claim is barred by immunity as a matter of law.10 We review de novo a trial court's decision on a motion for summary disposition.11 The applicability of governmental immunity is a question of law that we also review de novo.12 III. Tort Claims A. The Claims The Cluleys argue that the trial court erred by dismissing Virginia Cluley's tort claims based on governmental immunity. The Cluleys also argue that the trial court erred in concluding that, even assuming no immunity, Virginia Cluley's tort claims were factually deficient. However, the Cluleys' statement of the questions presented on appeal fails to challenge the trial court's decision regarding the merits of the tort claims. We may decline to address an issue that is not set forth in the statement of the questions presented.13 Nonetheless, we are empowered to

4 5 6 7

Id. at 119. MCR 2.116(G)(6); Maiden, supra at 119-120. Maiden, supra at 120.

Mack v Detroit, 467 Mich 186, 198; 649 NW2d 47 (2002); Smith v Kowalski, 223 Mich App 610, 616; 567 NW2d 463 (1997).
8 9

Maiden, supra at 119. MCR 2.116(G)(5); Maiden, supra at 119; Smith, supra at 616. Grahovac v Munising Twp, 263 Mich App 589, 591; 689 NW2d 498 (2004). Maiden, supra at 118. Baker v Waste Mgt of Mich, Inc, 208 Mich App 602, 605; 528 NW2d 835 (1995).

10 11 12 13

MCR 7.212(C)(5); McGoldrick v Holiday Amusements, Inc, 242 Mich App 286, 298; 618 NW2d 98 (2000). -3-


address any issue that we believe justice requires be considered and resolved, that is, for example, where a significant issue is raised and all the facts and law are presented.14 Under the circumstances of this case, we have elected to consider the Cluleys' arguments regarding both governmental immunity and the merits of Virginia Cluley's tort claims to the extent that consideration is appropriate to properly resolve the tort claims. We have also considered Elashkar's position that he was individually immune under MCL 691.1407(5), even though Elashkar has not fully addressed the trial court's rejection of his motion for summary disposition on this ground. An appellee may argue alternative grounds for affirmance without filing a cross appeal.15 B. Defamation The Cluleys' complaint alleged defamation against both the BWL and Elashkar arising from Elashkar's accusations in the disciplinary action. We first address the Cluleys' claims against the BWL. In general, a governmental agency's liability for an ultra vires act may be direct or may arise under a theory a vicarious liability where the tortious act was committed by an employee acting during the course of employment and within the scope of his or her authority.16 The governmental immunity act provides "broad immunity from tort liability to governmental agencies whenever they are engaged in the exercise or discharge of a governmental function[.]"17 "A plaintiff pleads in avoidance of governmental immunity by . . . pleading facts that demonstrate that the alleged tort occurred during the exercise or discharge of a nongovernmental . . . function."18 "Governmental function" is statutorily defined, in pertinent part, as "`an activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law.'"19 But, we stress, it is the general activity, not the specific allegedly tortious conduct, that determines if an agency was engaged in a

LME v ARS, 261 Mich App 273, 287; 680 NW2d 902 (2004); see Health Care Ass'n Workers Compensation Fund v Director of Bureau of Worker's Compensation, 265 Mich App 236, 243; 694 NW2d 761 (2005).
15 16

14

Middlebrooks v Wayne Co, 446 Mich 151, 166 n 41; 521 NW2d 774 (1994).

See Smith v Dep't of Public Health, 428 Mich 540, 605-610; 410 NW2d 749 (1987) (Brickley, J., concurring), and Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 623-625; 363 NW2d 641 (1984). Ross, supra at 595; see MCL 691.1407(1). Mack, supra at 204.

17 18 19

Maskery v Univ of Mich Bd of Regents, 468 Mich 609, 613-614; 664 NW2d 165 (2003), quoting MCL 691.1401(f). -4-


governmental function.20 The focus is on whether the government agency had authority to perform the activity in any manner.21 We reject the Cluleys' claim that Elashkar's alleged improper motive for disciplining Virginia Cluley is relevant in determining if the activity was a governmental function. Although Justice Brickley indicated in his plurality opinion in Smith v Dep't of Public Health,22 in the context of addressing a theory of direct liability against an agency, that "the intentional use or misuse of a badge of governmental authority for a purpose unauthorized by law is not the exercise of a governmental function," the Michigan Supreme Court later rejected an improperpurpose or malevolent-heart exception to governmental immunity. For purposes of the immunity granted to high-level executives acting within the scope of their authority under MCL 691.1405(5), the Court found that the executive's motive was not a relevant factor.23 We therefore focus solely on the evidence regarding the general activity in which Elashkar was engaged to determine if the BWL could be held liable for Elashkar's alleged defamatory conduct. Lansing's city charter,

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