STANLEY T WALSH V ROBERT TAYLOR
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STATE OF MICHIGAN
COURT OF APPEALS
STANLEY T. WALSH,
FOR PUBLICATION
September 23, 2004
9:00 a.m.
Plaintiff-Appellee,
v
No. 246059
Macomb Circuit Court
LC No. 2001-004338-NZ
ROBERT TAYLOR,
Defendant-Appellant,
Official Reported Version
and
RICHARD MARGOSIAN,
Defendant.
Before: Saad, P.J., and Talbot and Borrello, JJ.
BORRELLO, J. (dissenting).
I respectfully dissent from the majority opinion in this matter because there are questions
of fact that should proceed to the trier of fact. Accordingly, I would affirm the trial court for the
reasons the trial court stated on the record.
I strongly dissent from the majority's attempt to enlarge the scope of this Court's
jurisdiction. I additionally dissent because I believe that this Court correctly asserted the
application of the court rules at issue in Newton v State Police, 263 Mich App 251; ___NW2d
___ (2004).
The majority contends that when a trial court denies a motion for summary disposition on
any basis where the defense of governmental immunity could be raised, this Court acquires
jurisdiction to review all matters under MCR 7.203(A) and MCR 7.202(6)(a)(v). The majority
states:
We do not believe that our Supreme Court intended the court rule to be
read so restrictively that governmental bodies would be forced through discovery
and trial whenever their motion for dismissal is denied on grounds other than
MCR 2.116(C)(7), merely because the plaintiff contends that the governmental
agency is not immune. [Ante at ___ (emphasis added).]
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Impliedly, if not outrightly stated, the majority believes that plaintiffs allege facts outside
the scope of governmental immunity simply to avoid governmental immunity, and not because
the cause of action is based in law or fact. Whether intended or not, the clear message of the
majority is that this Court must now act as a guardian against a perceived onslaught of frivolous
litigation that our trial courts are seemingly ill-equipped to discover. Accordingly, I reject the
majority's contention that plaintiff is filing a frivolous claim simply to avoid the defense of
governmental immunity. Even assuming an onslaught of frivolous litigation, the trial courts—
not this Court—are empowered to be the initial adjudicators of such perceived frivolous claims.
However, the majority would have this Court become the court of initial jurisdiction to decide
matters that may not have been raised at the trial court level, giving rise to another implied belief
of the majority—that this Court should become a trier of fact. The concept of questions of fact
being tried by the trier of fact, and not by panels of this Court, is still the jurisprudence of this
state.
Thomas Jefferson understood the problems inherent when courts attempt to expand their
statutory authority when he wrote:
Our judges are as honest as other men and not more so. They have with
others the same passions for party, for power, and the privilege of their corps.
Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad
jurisdiction], and their power the more dangerous as they are in office for life and
not responsible, as the other functionaries are, to the elective control. The
Constitution has erected no such single tribunal, knowing that to whatever hands
confided, with the corruptions of time and party, its members would become
despots. It has more wisely made all the departments co-equal and co-sovereign
within themselves. [Lipscomb & Bergh, eds, The Writings of Thomas Jefferson
(Washington D.C.; Thomas Jefferson Memorial Ass'n, 1903-1904), vol 15, p 277,
Letter by Thomas Jefferson to William C. Jarvis, 1820.]
This Court has taken great pains to distinguish between a motion brought under MCR
2.116(C)(7), (C)(8), and (C)(10). Wilson v Alpena Co Rd Comm, 263 Mich App 141; ___ NW2d
___ (2004). Similarly, the panel in Newton, supra, stated:
The plain language of these court rules, interpreted in a common-sense
fashion, lead us to conclude that this exception applies only to situations where
the denial of summary disposition is directly based on a finding that the moving
party is not entitled to government[al] immunity and not to a situation where,
although a claim of governmental immunity has been asserted, the trial court
denies a summary disposition motion because the party opposing summary
disposition has stated a sufficient factual case to avoid summary disposition—in
other words, as in this case, where the motion is actually disposed of as a MCR
2.116(C)(10) motion rather than a (C)(7) motion. [Newton, supra at ___.]
The Newton Court understood that there are differences between C(7) and C(10) motions.
The majority in this case would eliminate such distinctions. This Court in Newton correctly
stated and decided the case, in part, on these distinctions. As this Court stated in Newton, supra
at ___:
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In our opinion, the trial court did not make a legal determination
concerning whether defendant was entitled to claim governmental immunity.
Instead, the trial court made a determination that there were genuine issues of
material fact to be resolved by the trier of fact. Therefore, the appeal in this case
was taken from a (C)(10) determination rather than a (C)(7) determination. The
order from which defendant claimed an appeal was therefore not a final order
under MCR 7.202(7)(a)(v) and MCR 7.203(A)(1). Accordingly, defendant was
required by the court rules to file an application for leave to appeal rather than a
claim of appeal.
Thus, where a trial court has not made a finding whether a defendant is governmentally
immune, it is premature for this Court to do so. However, the defendants in Newton were not
precluded from raising the defense of governmental immunity. They could have asked for this
Court to decide the issue by filing an application for leave to appeal. Accordingly, I dissent.
/s/ Stephen L. Borrello
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