RICHARD W PARRY V TWP OF GROVELAND
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STATE OF MICHIGAN
COURT OF APPEALS
RICHARD W. PARRY,
UNPUBLISHED
December 21, 2001
Plaintiff-Appellant,
V
TOWNSHIP OF GROVELAND, VINCE
FERRERI, PAM QUE, HAL COXON, WAYNE
BROSSEAU, JEAN SOVA, LYNNE SCHANK,
and DAVID AX,
No. 218821
Oakland Circuit Court
LC No. 98-007644-CZ
Defendants-Appellees,
and
VILICAN LEMAN & ASSOCIATES, INC.,
Defendant.
Before: Gage, P.J., and Cavanagh and Wilder, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s orders granting defendants summary
disposition on the basis of governmental immunity and dismissing the case.1 Plaintiff also
challenges the trial court’s denial of his motion to amend his complaint. We affirm.
I. Facts and Proceedings
In July 1998, plaintiff filed the instant complaint against Groveland Township (township)
and the individual members of the township’s planning commission, alleging that they
1
Plaintiff initially appealed from an the order granting summary disposition, but this Court
dismissed the appeal for lack of jurisdiction because the order did not dispose of the claims
against defendant Vilican Leman & Associates, Inc, a community-planning consulting firm that
worked on behalf of Groveland. Parry v Twp of Groveland, unpublished order of the Court of
Appeals, entered December 30, 1998 (Docket No. 215456). The trial court then entered an order
dismissing Vilican Leman by stipulation; thus, it is not a party to this appeal.
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intentionally interfered with his ability to sell land that he owned. According to the complaint, in
May 1997, plaintiff agreed to sell two and one-half acres of his property to Richard Cianek for
$70,000. However, after Cianek visited the township office to discuss the purchase with the
appropriate township officials, he backed out of the deal. Plaintiff also alleged that after Cianek
decided not to purchase the land, Craig and Monica Hamilton agreed to purchase the same
property at the same price; again, however, this agreement fell through after the Hamilton’s
attended meetings of the planning commission and discussed the purchase with township
officials. Plaintiff claimed that the prospective buyers chose not to buy the land because
defendants intentionally placed numerous, unauthorized conditions on his request to subdivide
his twenty-three acre parcel, in an effort to interfere with his ability to sell the property.
The complaint further alleged that in May 1998, plaintiff entered into a contractual
relationship with a realtor in an effort to sell a separate two and a one-half acres from his twentythree acre parcel, but that because defendant required him to provide a survey and remove a pole
barn from the property as conditions for approval of his June 11, 1998 application to subdivide
his property into four smaller parcels, this prevented him from being able to sell this parcel.
Plaintiff alleged that these conditions for approval were contrary to local ordinances and
motivated by defendants’ grudge against plaintiff because he had filed previous lawsuits against
the township. Plaintiff’s original complaint contained only two counts: intentional interference
with a prospective contract and deprivation of rights. However, in August 1998, plaintiff moved
to amend the complaint to add as a defendant Charles Cairns, an employee of defendant Vilican
Leman & Associates,2 and to add counts for professional malpractice, fraud and deceit, breach of
contract, outrageous conduct, and breach of fiduciary duty. The trial court denied plaintiff’s
motion without prejudice.
Defendants moved for summary disposition on the basis of governmental immunity,
arguing that since township officials were engaged in a governmental function, plaintiff’s
disagreement with defendants about the conditions for approval of his request for land division
was not a basis for liability. Plaintiff opposed the motion, arguing that planning commission
officials had extorted money from him, infringed on his property rights, and blatantly violated
local ordinances, conduct beyond the scope of their authority and not protected by governmental
immunity. Plaintiff also claimed that discovery would provide him with the evidence needed to
support these allegations, and that summary disposition was premature.
Following a hearing on defendants’ motion, the trial court concluded that because the
planning commission’s decision whether to grant an application for land division was a
governmental function, and that plaintiff failed to plead any facts showing that defendants were
not engaged in a legitimate governmental function, summary disposition pursuant to MCR
2.116(C)(7) and (C)(8) was appropriately granted.
II. Standard of Review
2
As stated previously in n 1, Vilican Leman is not a party to this appeal.
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This Court’s review of a trial court’s grant of summary disposition de novo. Coleman v
Kootsillas, 456 Mich 615, 618; 575 NW2d 527 (1998). In addition, the applicability of
governmental immunity is a question of law that we review de novo. Cain v Lansing Housing
Comm, 235 Mich App 566, 568; 599 NW2d 516 (1999). In reviewing an MCR 2.116(C)(7)
motion, we are to consider the pleadings and all documentary evidence presented in the light
most favorable to the nonmoving party. Barrow v Prithard, 235 Mich App 478, 480; 597 NW2d
853 (1999), and summary disposition should only be granted when the moving party is entitled to
judgment as a matter of law. DeCaminanda v Coopers & Lybrand LLP, 232 Mich App 492, 496;
591 NW2d 364 (1998). Further, a motion for summary disposition pursuant to MCR 2.116(C)(8)
tests the legal sufficiency of the complaint and allows consideration of only the pleadings.
MacDonald v PKT, Inc, ___ Mich ___; ___ NW2d ___ (2001) (Docket No. 114039) slip op p 9,
citing Wade v Dep’t of Corrections, 439 Mich 158, 162; 483 NW2d 26 (1992); Maiden v
Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). The motion should be granted only when
the claim is so clearly unenforceable as a matter of that no factual development could possible
justify a right of recovery. Rozwood, supra; Wade, supra at 163.
III. Analysis
Plaintiff first argues that defendants intentionally interfered with his ability to sell his
property by imposing unlawful conditions on his subdivision application, rendering these actions
ultra vires and not protected by government immunity. Thus, plaintiff challenges the trial court’s
granting of summary disposition to the township and planning commission members pursuant to
MCR 2.116(C)(7) and (8).
The governmental immunity statute, MCL 691.1407(1), states, in relevant part:
Except 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.
An action is a governmental function, and therefore not ultra vires, when it is “expressly
or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other
law.” MCL 691.1401(f); See also Ross v Consumers Power Co (On Remand), 420 Mich 567,
620; 363 NW2d 641 (1984).
Townships may regulate land use and land division. See MCL 125.271(1). In addition,
townships may establish a planning commission to make recommendations regarding land
development and land division. MCL 125.323(1).3 Here, local ordinances authorized the
planning commission to impose conditions on land division. See Groveland Township
3
MCL 125.323(1) provides:
The township board of any township may create, by resolution, a township
planning commission with power to make, adopt, extend, add to or otherwise
amend, and to carry out plans for the unincorporated portions of the township as
provided in this act.
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Ordinance, § 24.200 et seq. Thus, the township’s regulation of plaintiff’s land division was
clearly a governmental function. See Randall v Delta Charter Twp, 121 Mich App 26, 32; 328
NW2d 562 (1982) (township planning commission’s decision whether to enforce zoning
ordinances is a governmental function). Therefore, because the township was engaged in a
governmental function when it imposed conditions on plaintiff’s application for land division, we
reject plaintiff’s contention that the township’s actions were “ultra vires” and conclude that the
trial court correctly granted summary disposition to the township on the basis of governmental
immunity.
Plaintiff’s complaint alleged that the individual planning commission members
intentionally interfered with his attempts to sell his property. An individual government officer
is not immune to liability for intentional torts. Sudul v Hamtramck, 221 Mich App 455, 458; 562
NW2d 478 (1997); see also MCL 691.1407(2)(c) and (3).4 In order to recover for intentional
interference with contractual relations, a plaintiff “must allege the intentional doing of a per se
wrongful act or the doing of a lawful act with malice and unjustified in law for the purpose of
invading the contractual rights or business relationship of another.” Prysak v R L Polk Co, 193
Mich App 1, 12; 483 NW2d 629 (1992), quoting Stanton v Dachille, 186 Mich App 247, 255;
463 NW2d 479 (1990).
Here, the individual defendant’s imposition of conditions for granting plaintiff’s
requested land division was justified by law. See generally, MCL 125.271(1), MCL 691.1401(f)
and Groveland Township Ordinance, § 24.100 et seq. See also Parry v Township of Groveland,
Case No 98-008599-AZ, opinion and order of the Oakland Circuit Court upholding the
conditions as lawful in plaintiff’s appeal from the decision of the township board of appeals.
Since the conditions were justified in law, plaintiff failed to state a claim upon which relief can
be granted and summary disposition was appropriate pursuant to MCR 2.116(C)(8). See
Wickings v Arctic Enterprises, Inc, 244 Mich App 125, 150; ___ NW2d ___ (2000).
4
MCL 691.1407, provides, in pertinent part:
(2) Except as otherwise provided in this section, and without regard to the
discretionary or ministerial nature of the conduct in question, each officer and
employee of a governmental agency . . . is immune from tort liability for an injury
to a person or damage to property caused by the officer. . . if all of the following
are met:
***
(c) The officer’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.
(3) Subsection (2) does not alter the law of intentional torts as it existed
before July 7, 1986.
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Plaintiff also argues that the trial court erred by granting summary disposition before
discovery commenced. However, plaintiff made no showing that discovery would create a fair
chance of uncovering factual support of the position that the Township was not immune from
suit or that the Planning Commission requirements that plaintiff provide a survey and remove a
pole barn were unlawful. Since further discovery was futile on the ultimate question of liability,
summary disposition was not granted prematurely. Bauer v Ferriby & Houston, PC, 235 Mich
App 536, 540; 599 NW2d 493 (1999); Hasselbach v TG Canton, Inc, 209 Mich App 475, 482;
531 NW2d 715 (1994); see also Prysak, supra.
Lastly, plaintiff claims that the trial court erred when it failed to allow him to amend the
complaint to add Cairns as a defendant. However, plaintiff filed a separate action against Cairns
arguing the same issues he wished to raise in this case, and these claims have been fully
considered. See Parry v Cairns, unpublished opinion per curium of the Court of Appeals, issued
June 12, 2001 (Docket No. 220160). Accordingly, this issue is moot.
Affirmed.
/s/ Hilda R. Gage
/s/ Mark J. Cavanagh
/s/ Kurtis T. Wilder
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