                          STATE OF MICHIGAN

                           COURT OF APPEALS



ESTATE OF MARGARET MARIE ROUSH, by                                  UNPUBLISHED
CYNTHIA HARDY, Personal Representative,                             December 11, 2014

               Plaintiff-Appellant,

v                                                                   No. 317406
                                                                    Montcalm Circuit Court
THE LAURELS OF CARSON CITY, L.L.C.,                                 LC No. 2012-016830-CZ

               Defendant-Appellee.


Before: MARKEY, P.J., and SAWYER and OWENS, JJ.

PER CURIAM.

       Plaintiff appeals by right the trial court’s order granting summary disposition to
defendant pursuant to MCR 2.116(C)(10) and dismissing the case. We reverse and remand.

        This case arises out of Margaret Marie Roush’s stay at defendant’s facility from October
17 to November 21, 2012. Plaintiff alleged that defendant unlawfully detained Roush at the
facility while a determination was pending with regard to Roush’s ability to make treatment
decisions for herself and that defendant’s agents committed various torts while Roush was at the
facility and after Roush was discharged from the facility. Plaintiff’s complaint alleged false
imprisonment, intentional infliction of emotional distress, abuse of process, and civil conspiracy.
Before the close of discovery, the trial court granted defendant’s motion for summary disposition
pursuant to MCR 2.116(C)(10) and dismissed all of plaintiff’s claims. The trial court relied
exclusively on MCL 700.5508(2) and found that because there were competing opinions
regarding Roush’s ability to make treatment decisions while she was in the facility, the facility
complied with its obligations pursuant to MCL 700.5508(2) because the parties sought a
determination from a court regarding the issue of Roush’s ability to make treatment decisions.

         A grant or denial of summary disposition based upon MCR 2.116(C)(10) is reviewed de
novo on appeal. Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004).
Pursuant to MCR 2.116(C)(10), summary disposition should be granted when “[e]xcept as to the
amount of damages, there is no genuine issue as to any material fact, and the moving party is
entitled to judgment or partial judgment as a matter of law.” When deciding a motion for
summary disposition under MCR 2.116(C)(10), a court considers the pleadings, affidavits,
depositions, admissions, and other documentary evidence submitted in a light most favorable to
the nonmoving party. Corley, 470 Mich at 278. A genuine issue of material fact exists when the

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record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon
which reasonable minds could differ. Debano-Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d
634 (2013). Summary disposition pursuant to MCR 2.116(C)(10) is generally premature if
granted before discovery on a disputed issue is complete. Marilyn Froling Revocable Living
Trust v Bloomfield Hills Country Club, 283 Mich App 264, 292; 769 NW2d 234 (2009).

        “The elements of false imprisonment are ‘(1) an act committed with the intention of
confining another, (2) the act directly or indirectly results in such confinement, and (3) the
person confined is conscious of his confinement.’” Moore v Detroit, 252 Mich App 384, 387;
652 NW2d 688 (2002). The confinement element of false imprisonment involves “an unlawful
restraint on a person’s liberty or freedom of movement.” Walsh v Taylor, 263 Mich App 618,
627; 689 NW2d 506 (2004).

        In the present case, plaintiff alleged that Roush was falsely imprisoned at the facility
from November 8 to November 21, 2012, and there is no real dispute that Roush’s liberty or
freedom of movement was restricted during this time. However, defendant claimed that on
October 24, 2012, Robert Gallagher became Roush’s patient advocate, and Gallagher directed
that Roush not be discharged from the facility. Defendant relied on Gallagher’s authority as a
patient advocate as a basis for restricting Roush’s liberty or freedom of movement between
November 8 and November 21, 2012.

         A patient advocate’s authority “is exercisable only when the patient is unable to
participate in medical or mental health treatment decisions.” MCL 700.5506(3). Therefore,
Gallagher’s authority as a patient advocate was properly invoked on October 24, 2012, only if
Roush was unable to participate in medical treatment decisions on that date.1 In contrast, if there
was a dispute on October 24, 2012, regarding Roush’s ability to participate in medical treatment
decisions, the parties could have filed a petition requesting a court’s determination as to her
abilities. MCL 700.5508(2).

        At the time the trial court granted defendant’s motion for summary disposition, genuine
issues of material fact remained with regard to whether Gallagher was validly appointed as
Roush’s patient advocate on October 24, 2012, and whether he remained as her patient advocate
thereafter. After evaluating Roush’s mental status, plaintiff’s primary care physician and another
physician at the facility determined that Roush was unable to make and communicate medical
decisions as of October 24, 2012. However, discovery was not closed at the time of the hearing
on defendant’s motion for summary disposition, and plaintiff provided the trial court with an
affidavit alleging that if deposed, one of these physicians would testify that Roush actually was
able to participate in making medical decisions on October 24, 2012. Further, at the time of the
hearing on the motion for summary disposition plaintiff had not yet had the opportunity to
analyze hundreds of pages of written discovery that could have shed light on Roush’s mental
capabilities on October 24, 2012. In sum, the issue whether Roush was unable to make decisions


1
 The parties do not allege, and the record does not support a finding, that there is any other date
on which Gallagher’s authority as a patient advocate could have been properly invoked.



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regarding medical treatment on October 24, 2012, was unresolved at the time summary
disposition was granted, and this unresolved issue was material to plaintiff’s false imprisonment
claim.

        Moreover, even if Gallagher’s powers as a patient advocate were properly invoked on
October 24, 2012, to provide a defense to the claim of false imprisonment, Gallagher’s authority
would have needed to extend through the period of alleged false imprisonment, i.e., would need
to extend from November 8 to November 21, 2012.2 And, at the time of the hearing on the
motion for summary disposition, there were unresolved factual questions with regard to whether
Gallagher’s authority as a patient advocate extended through November 21, 2012. These
unresolved issues include when or whether Gallagher’s authority as a patient advocate was
suspended pursuant to MCL 700.5509(2) based on Roush’s regained ability to participate in
medical decisions, and whether Roush validly revoked Gallagher’s patient advocate designation
on November 15, 2012, pursuant to MCL 700.5510(1)(d) and MCL 700.5507(7). All of these
unresolved factual issues are material to the false imprisonment claim because the facility’s
ability to legally restrict Roush’s freedom of movement based on directions from her patient
advocate necessarily turns on whether and when Gallagher’s authority as Roush’s patient
advocate was valid. Moreover, all of these unresolved issues stood a fair chance of being
resolved through discovery. Further, application of MCL 700.5508(2) to the facts of this case
does not resolve any of these issues; however, this statute was the only basis on which the trial
court relied in dismissing plaintiff’s false imprisonment claim. Therefore, the trial court erred in
dismissing plaintiff’s false imprisonment claim pursuant to MCR 2.116(C)(10) based on MCL
700.5508(2) and before the close of discovery. Debano-Griffin, 493 Mich at 175; Corley, 470
Mich at 278; Froling Revocable Living Trust, 283 Mich App at 292.

        Next, the elements of a claim of intentional infliction of emotional distress are: “(1)
extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe
emotional distress.” Hayley v Allstate Ins Co, 262 Mich App 571, 577; 686 NW2d 273 (2004)
(citation omitted). With regard to the first element of this tort, “[t]he conduct complained of
must be ‘so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized
community.’” Id. With regard to the second element of this tort, a plaintiff must either show
that a defendant specifically intended to cause the plaintiff emotional distress or that the
defendant’s conduct was so reckless that “any reasonable person would know emotional distress
would result.” Lewis v LeGrow, 258 Mich App 175, 197; 670 NW2d 675 (2003).

       In the present case, plaintiff’s claims of intentional infliction of emotional distress arise
out of the allegations that Roush was illegally detained at the facility from November 8 to
November 21, that one of the facility’s physicians (who was also Roush’s personal physician)


2
  Gallagher’s authority as a patient advocate was the only legal basis that defendant pled for
detaining Roush from November 8 to November 21, 2012. We do not reach a determination
with regard to whether there are other unpled, legal bases for detaining Roush in the facility
during this time.



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refused to treat Roush after her discharge from the facility, and that an employee of the facility
fabricated allegations that resulted in an adult protective services’ investigation into the care that
Roush received after she was discharged from the facility. As set forth previously, at the time
the trial court dismissed plaintiff’s claims pursuant to MCR 2.116(C)(10), genuine issues of fact
remained with regard to whether the facility had a legal basis for detaining Roush from
November 8 to November 21, 2012. Likewise, defendant does not dispute that Roush’s
physician declined to continue to treat Roush after she was discharged from the facility and that
one of its employees made a report to adult protective services regarding Roush’s treatment upon
her discharge from the facility. Further, plaintiff provided affidavits that, when viewed in the
light most favorable to plaintiff, create a genuine issue with regard to the material facts of
whether these actions amounted to extreme and outrageous conduct that was intentional or
reckless and caused Roush severe emotional distress.

        These unresolved issues are material to plaintiff’s claim of intentional infliction of
emotional distress. Hayley, 262 Mich App at 577. Moreover, all of these unresolved issues
stood a fair chance of being resolved through discovery. Further, application of MCL
700.5508(2) to the facts of this case does not resolve any of these issues; however, this statute
was the only basis on which the trial court relied in dismissing plaintiff’s intentional infliction of
emotional distress claim. Therefore, the trial court erred in dismissing plaintiff’s claim of
intentional infliction of emotional distress pursuant to MCR 2.116(C)(10) based on MCL
700.5508(2) and before the close of discovery. Debano-Griffin, 493 Mich at 175; Corley, 470
Mich at 278; Froling Revocable Living Trust, 283 Mich App at 292.

        Next, the elements of abuse of process are “(1) an ulterior purpose and (2) an act in the
use of process that is improper in the regular prosecution of the proceeding.” Bonner v Chicago
Title Ins Co, 194 Mich App 462, 772; 487 NW2d 807 (1992). “A meritorious claim of abuse of
process contemplates a situation where the defendant has availed himself of a proper legal
procedure for a purpose collateral to the intended use of that procedure.” Dalley v Dykema
Gossett, 287 Mich App 296, 322; 788 NW2d 679 (2010).

        In the present case, plaintiff’s claims of abuse of process arise out of the allegations that
one of defendant’s employees improperly helped Gallagher file a petition for guardianship over
Roush and that an employee of the facility fabricated allegations of elder abuse after Roush was
discharged from the facility, and that these actions were done for the improper purposes of
harassing Roush, retaliation against Roush, and financial gain if Roush remained in the facility.
The “process” contemplated by the tort of abuse of process is a legal process, not an
administrative process. Friedman v Dozorc, 412 Mich 1, 30 n 18; 312 NW2d 585 (1981);
Dalley, 287 Mich App at 322; Young v Motor City Apartments Ltd, 133 Mich App 671, 683; 350
NW2d 790 (1984). Therefore, plaintiff’s allegation of abuse of process arising out of the elder
abuse-reporting process fails as a matter of law. This Court will affirm a trial court’s grant of
summary disposition if it reaches the correct result, even if for the wrong reason, Jackson Co
Hog Producers v Consumers Power Co, 234 Mich App 72, 86; 592 NW2d 112 (1999), and we
affirm dismissal of the claim for abuse of process based on this allegation.

       However, the guardianship process is a legal process through the probate court. And, at
the time the trial court dismissed plaintiff’s claim for abuse of process, there was conflicting


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evidence in the record regarding Roush’s known mental status at the time the petition for
guardianship was filed and the extent to which defendant’s employees assisted with this filing.
In addition, plaintiff provided affidavits that, when viewed in the light most favorable to
plaintiff, create a genuine issue with regard to the material fact whether defendant or one of its
employees availed itself of the proper guardianship procedure for a purpose collateral to the
intended use of that procedure. These unresolved issues are material to plaintiff’s remaining
allegation of abuse of process. Dalley, 287 Mich App at 322. Moreover, these unresolved issues
stood a fair chance of being resolved through discovery. Further, application of MCL
700.5508(2) to the facts of this case does not resolve these issues; however, this statute was the
only basis on which the trial court relied in dismissing plaintiff’s abuse of process claim.
Therefore, the trial court erred in dismissing plaintiff’s allegations of abuse of process arising out
of the guardianship proceedings pursuant to MCR 2.116(C)(10) based on MCL 700.5508(2) and
before the close of discovery. Debano-Griffin, 493 Mich at 175; Corley, 470 Mich at 278;
Froling Revocable Living Trust, 283 Mich App at 292.

        Finally, a civil conspiracy is “a combination of two or more persons, by some concerted
action, to accomplish a criminal or unlawful purpose, or to accomplish a lawful purpose by
criminal or unlawful means.” Urbain v Beierling, 301 Mich App 114, 131; 835 NW2d 455
(2013). In addition, “a claim for civil conspiracy may not exist in the air; rather, it is necessary
to prove a separate, actionable tort.” Advocacy Org for Patients & Providers v Auto Club Ins
Ass’n, 257 Mich App 365, 384; 670 NW2d 569 (2003). If a plaintiff fails to establish the
underlying tort, the claim for civil conspiracy must also fail. Id. at 384-385.

        In the present case, plaintiff’s claim of civil conspiracy is based on the underlying alleged
torts of false imprisonment, intentional infliction of emotional distress, and abuse of process. If
any of the alleged, underlying tortious conduct is established, this conduct would also provide
support for the civil conspiracy claim.3 However, if plaintiff’s underlying torts all fail after the
close of discovery, plaintiff’s civil conspiracy claim also fails. Advocacy Org for Patients &
Providers, 257 Mich App at 384-385. In sum, there are unresolved factual issues material to
plaintiff’s claims of false imprisonment, intentional infliction of emotional distress, and abuse of
process; these unresolved issues stood a fair chance of being resolved through discovery; and
plaintiff’s ability to prevail on its claim of civil conspiracy requires it to prevail on at least one of
these underlying torts. Further, application of MCL 700.5508(2) to the facts of this case does not
resolve the outstanding issues in the underlying torts; however, this statute was the only basis on
which the trial court relied in dismissing plaintiff’s civil conspiracy claim. Therefore, the trial
court erred in dismissing plaintiff’s claim of civil conspiracy pursuant to MCR 2.116(C)(10)
based on MCL 700.5508(2) and before the close of discovery. Debano-Griffin, 493 Mich at 175;
Corley, 470 Mich at 278; Froling Revocable Living Trust, 283 Mich App at 292.




3
  We note that to prevail on its civil conspiracy claim, plaintiff would also be required to
establish that Gallagher and someone at the facility, “by some concerted action” conspired to
accomplish the tortious conduct. Urbain, 301 Mich App at 131.



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        We note that plaintiff argues that resolution of this appeal turns on statutory interpretation
of MCL 700.5508(2). For the reasons stated herein, the statutory interpretation arguments are
not dispositive and we decline to address them.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.

                                                              /s/ Jane E. Markey
                                                              /s/ David H. Sawyer
                                                              /s/ Donald S. Owens




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