VINCENT DILORENZO V STATE OF MICHIGAN
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STATE OF MICHIGAN
COURT OF APPEALS
VINCENT DILORENZO and ANGELA
TINEVIA,
UNPUBLISHED
December 8, 2005
Plaintiffs-Appellants,
v
STATE OF MICHIGAN, COMMISSIONER OF
THE OFFICE OF FINANCIAL AND
INSURANCE SERVICES,
No. 255432
Ingham Circuit Court
LC No. 03-000174-MZ
Defendant-Appellee.
Before: Smolenski, P.J., and Schuette and Borrello, JJ.
PER CURIAM.
Plaintiffs appeal by right from the trial court’s order granting summary disposition to
defendant. We affirm.
I. FACTS
Plaintiffs’ complaint alleged breach of contract, promissory estoppel, misrepresentation,
fraudulent inducement, and abuse of discretion on the part of defendant in its dealings with
plaintiffs. Plaintiffs were principal stockholders in New Century Bancorp, which was ordered
into receivership in a separate case.1
Defendant filed a motion for summary disposition under MCR 2.116(C)(7) and (8). The
trial court granted the motion, holding that defendant was immune from any tort claims as the
state and a governmental agency and that, if an agreement was reached between plaintiffs and
defendant, it was void because defendant lacked any authority to enter into the agreement.
1
Comm’r of the Office of Financial & Ins Services v New Century Bank, unpublished opinion
per curiam of the Court of Appeals, decided November 4, 2004 (Docket No. 249109).
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II. STANDARD OF REVIEW
This Court reviews an order granting summary disposition under MCR 2.116(C)(7) and
(8) de novo. Hazle v Ford Motor Co, 464 Mich 456, 461; 628 NW2d 515 (2001). A motion
under MCR 2.116(C)(8) tests the legal sufficiency of a complaint and under the subrule “[a]ll
well-pleaded factual allegations are accepted as true and construed in a light most favorable to
the nonmovant.” Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). The legal
sufficiency of the complaint is based on the pleadings alone. Beaudrie v Henderson, 465 Mich
124, 129; 631 NW2d 308 (2001). As pointed out in plaintiffs’ brief, a motion under this subrule
may only be granted where “no factual development could possibly justify recovery.” Wade v
Dep’t of Corrections, 439 Mich 158, 162-163; 483 NW2d 26 (1992).
III. ANALYSIS
Plaintiffs argue on appeal that summary disposition was erroneously granted because
there was an enforceable agreement between the parties, that discovery was incomplete and that
it was error for the court not to allow an amendment of their complaint to correct any defects.
Finally, they claim that the trial court did not make findings of fact and law on the record.
Even accepting all the well-pleaded facts as true and construing them in plaintiffs’ favor,
we hold that the trial court was correct in its decision to adopt the reasoning in defendant’s brief
and grant summary disposition to defendant. First, the contracts that were attached were outside
the pleadings and should not be considered. Beaudrie, supra at 129. Secondly and more
compelling, the contracts were not between plaintiffs and defendant, but between third parties.
Finally, even if the claim that plaintiffs and defendant had made a deal, it was
unenforceable as a matter of law. Any authority to enter into agreements must be conferred by
statute or by the constitution. Roxborough v Michigan Unemployment Compensation Comm’n,
309 Mich 505, 511; 15 NW2d 724 (1944); Taxpayers of Michigan Against Casinos v Michigan,
___ Mich App ___; ___NW2d ___ (2005), slip op at 9. Plaintiffs have not pointed to any
authority, statutory or otherwise, that would permit defendant to enter into an agreement to avoid
the procedures set up by the Banking Code of 1999, MCL 487.11101 et seq.
The trial court’s reliance on Roxborough, supra, and Sittler v Bd of Control of the
Michigan College of Mining & Technology, 333 Mich 681, 687; 53 NW2d 681 (1952), was well
placed. In this case, plaintiffs do not have any proof that an agreement existed, or that defendant
had the authority to make an agreement.
The trial court also correctly granted summary disposition under MCR 2.116(C)(7) for
the torts of fraudulent inducement and misrepresentation alleged by plaintiffs.
The statute controlling governmental immunity, MCL 691.1407, makes it clear that
unless the tort alleged falls within one of the delineated exceptions, the state agency is immune
when engaged in the exercise or discharge of its governmental function. To avoid dismissal,
plaintiffs’ complaint must allege facts that justify application of one of the exceptions to
immunity. Wade, supra at 164. There are only five statutory exceptions to governmental
immunity, the “highway exception,” MCL 691.1402, the “motor vehicle exception,” MCL
691.1405, the “public building exception,” MCL 691.1406, the “proprietary function,” MCL
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691.1413, and the “governmental hospital exception,” MCL 691.1407(4). Because plaintiffs
failed to allege facts to avoid these exceptions, the court properly granted summary disposition.
Wade, supra.
Plaintiffs next argue that, had they been given an opportunity to complete discovery or
allowed to amend their complaint, summary disposition would not have been proper.
Summary disposition is not appropriate where facts may be developed through discovery
to support a claim. Xu v Gray, 257 Mich App 263, 267; 668 NW2d 166 (2003). However, if no
factual development could possibly justify recovery, then summary disposition is appropriate.
Beaudrie, supra at 130. In this case, plaintiffs had almost two years from the time the petition
for receivership was filed and almost six months between the time they filed their complaint to
the time defendant’s motion was heard to discover any evidence to support their claim.
Additional time was unlikely to have brought any new evidence to light.
Plaintiffs also complain that they were not given an opportunity to amend their complaint
to cure any defects and avoid dismissal. MCR 2.116 (I)(5) provides: “If the grounds asserted are
based on subrule (C)(8), (9), or (10), the court shall give the parties an opportunity to amend
their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that
amendment would not be justified.” MCR 2.118 provides that leave of the court is required to
do so. Plaintiffs did not seek leave of the court to amend their pleadings. While MCR
2.118(A)(2) states that “[l]eave shall be freely given when justice so requires,” amendment is not
justified when it would be futile. Weymers v Khera, 454 Mich 639, 658; 563 NW2d 647 (1997).
Since plaintiffs did not seek leave to amend their complaint and it appears that
amendment would have been futile anyway, this argument must fail.
Affirmed.
/s/ Michael R. Smolenski
/s/ Bill Schuette
/s/ Stephen L. Borrello
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