DARIN TRANSOU V CITY OF PONTIAC
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STATE OF MICHIGAN
COURT OF APPEALS
DARIN TRANSOU,
UNPUBLISHED
January 22, 2009
APPROVED FOR
PUBLICATION
March 19, 2009
9:20 a.m.
Plaintiff-Appellant,
v
No. 280046
Oakland Circuit Court
LC No. 2006-076858-NO
CITY OF PONTIAC, d/b/a CRYSTAL LAKE
GOLF COURSE,
Defendant-Appellee.
Advance Sheets Version
Before: Servitto, P.J., and Owens and K. F. Kelly, JJ.
PER CURIAM.
This matter arises out of injuries plaintiff sustained when struck by a golf ball at
defendant’s golf course. Defendant moved for summary disposition, asserting that the action
was barred by governmental immunity under MCL 691.1407(1). The trial court agreed, and
plaintiff now appeals as of right. We affirm.
Although not specified in the record, the trial court granted defendant summary
disposition under MCR 2.116(C)(7) and (10). We review de novo a trial court’s decision on a
motion for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817
(1999). A motion under MCR 2.116(C)(7) is properly granted when a claim is barred by
governmental immunity and the nonmoving party has failed to allege facts that justify an
exception to that immunity. Steele v Dep’t of Corrections, 215 Mich App 710, 712-713; 546
NW2d 725 (1996). A motion under MCR 2.116(C)(10) is properly granted if no genuine issue
of fact exists and the moving party is entitled to a judgment as a matter of law. Rice v Auto Club
Ins Ass’n, 252 Mich App 25, 31; 651 NW2d 188 (2002). In reviewing a motion brought under
MCR 2.116(C)(7) or MCR 2.116(C)(10), we consider all the evidence, including admissions,
affidavits, depositions, and pleadings in the light most favorable to the nonmoving party. Id. at
30-31; Wade v Dep’t of Corrections, 439 Mich 158, 162-163; 483 NW2d 26 (1992).
Plaintiff argues that the trial court erred by determining that the proprietary function
exception to governmental immunity did not apply. We disagree. Generally, governmental
agencies are immune from tort liability. MCL 691.1407(1). However, MCL 691.1413 provides
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that governmental immunity does not apply “to actions to recover for bodily injury . . . arising
out of the performance of a proprietary function . . . .” That same section defines “proprietary
function” as “any activity which is conducted primarily for the purpose of producing a pecuniary
profit for the governmental agency, excluding, however, any activity normally supported by
taxes or fees.” Id. Thus, to be a proprietary function, the “activity (1) must be conducted
primarily for the purpose of producing a pecuniary profit, and (2) it cannot be normally
supported by taxes and fees.” Coleman v Kootsillas, 456 Mich 615, 621; 575 NW2d 527 (1998).
Two considerations are relevant to the first prong of this inquiry:
First, whether an activity actually generates a profit is not dispositive, but
the existence of profit is relevant to the governmental agency’s intent. An agency
may conduct an activity on a self-sustaining basis without being subject to the
proprietary function exemption. Second, where the profit is deposited and where
it is spent indicate intent. If profit is deposited in the general fund or used on
unrelated events, the use indicates a pecuniary motive, but use to defray expenses
of the activity indicates a nonpecuniary purpose. [Herman v Detroit, 261 Mich
App 141, 145; 680 NW2d 71 (2004) (citations omitted).]
Our review of the record shows that defendant’s golf course is not a propriety function
within the meaning of MCL 691.1413 because there is no genuine issue of material fact about
whether the golf course is “conducted primarily for the purpose of producing a pecuniary profit
. . . .” Coleman, supra at 621. Although the parties dispute whether the golf course generates a
profit, the record shows that any revenue the golf course does generate is intended to be applied
to its operation and its bond service obligation. This debt was incurred in the mid-1990s when
the golf course was reconstructed as part of the golf course development project, which also
included the development of a surrounding residential community. Nonetheless, the golf course
has operated at a loss since the fiscal year ending in 1995, and defendant’s finance director, Mr.
Raymond Cochran, noted that other city revenues have been used to meet the golf course’s
obligations.
Given these facts, we are not persuaded that this use of the golf course’s revenue shows a
pecuniary motive. Any revenue from the operation of the golf course was not deposited in a
general fund or used on unrelated events. Herman, supra at 145. Rather, revenue was to be used
in a self-sustaining manner—to meet operation costs and to service the debt incurred during
redevelopment. Id. We see no merit in plaintiff’s contrary contention that the golf course’s
revenue was to be used on “unrelated events” because it was intended to extinguish the bonds
issued to finance the housing component of the development project. Rather, the record reflects
that the development of surrounding housing was part of the development project and, therefore,
it is not an unrelated event. Further, Mr. Cochran stated in his affidavit that “[g]olf course
revenues have never been budgeted in an anticipatory fashion for use by other City departments
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or divisions . . . and have not been considered as a basis to reduce tax millages nor to fund other
City operations.”1
Viewed in the light most favorable to plaintiff, the evidence does not show that that the
golf course was operated “primarily for the purpose of producing a pecuniary profit . . . .”
Coleman, supra at 621. Accordingly, the operation of the golf course is not a proprietary
function, and the trial court properly ruled that plaintiff’s action is barred by governmental
immunity.
Affirmed.
/s/ Deborah A. Servitto
/s/ Donald S. Owens
/s/ Kirsten Frank Kelly
1
In opposition to defendant’s motion for summary disposition, plaintiff presented an affidavit
prepared by an accountant. The affidavit was neither signed nor notarized. This deficiency was
brought to plaintiff’s attention in defendant’s reply, but there is no indication in the record that
the defects were cured. Because the affidavit does not comply with the court rules, we do not
consider it. MCR 2.113(A); MCR 2.114(C)(2).
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