            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



D. M. BURR FACILITIES MANAGEMENT,                                    UNPUBLISHED
INC.,                                                                January 29, 2019

               Plaintiff/Counterdefendant-
               Appellee,

v                                                                    No. 340570
                                                                     Wayne Circuit Court
ROMULUS COMMUNITY SCHOOLS and                                        LC No. 17-010411-CK
BOARD OF EDUCATION OF ROMULUS
COMMUNITY SCHOOLS,

               Defendants/Counterplaintiffs-
               Appellants.


Before: MURRAY, C.J., and SERVITTO and SHAPIRO, JJ.

PER CURIAM.

        Defendants appeal by right the trial court’s order denying their motion for summary
disposition of plaintiff’s conversion claims under MCR 2.116(C)(7) (governmental immunity).
For the reasons stated below, we reverse.1

                                       I. BACKGROUND



1
  We review de novo a trial court’s decision on a motion for summary disposition. Summer v
Southfield Bd of Ed, 310 Mich App 660, 667; 874 NW2d 150 (2015). Claims of governmental
immunity are analyzed under MCR 2.116(C)(7), which requires us to accept the nonmoving
party’s well-pleaded allegations as true “unless contradicted by any affidavits, depositions,
admissions, or other documentary evidence submitted by the parties.” Pierce v Lansing, 265
Mich App 174, 177; 694 NW2d 65 (2005). “If no facts are in dispute, or if reasonable minds
could not differ regarding the legal effect of the facts, the question whether the claim is barred by
governmental immunity is an issue of law.” Id.
       In June 2013, defendants2 issued a Request for Proposals (RFP) seeking a service
provider to perform a variety of maintenance services for the Romulus school district including
lawn care, snow blowing, building upkeep, and janitorial services. The RFP allowed the
proposer to submit bids based either on the school district providing the necessary supplies,
materials, and equipment or the contractor providing same. The RFP provided that if the
contractor provided its own equipment, the school district could seek to purchase the equipment
from the contractor at the end of the contract term, providing a price could be agreed upon.

       Plaintiff submitted the winning bid and the parties entered into a three-year service
agreement under which plaintiff “would provide all cleaning chemicals, cleaning equipment,
grounds equipment, and snow removal equipment.” Accordingly, plaintiff purchased and
obtained title to the necessary equipment and thereafter used that equipment to perform the
contractual maintenance services. At the end of the contract term, defendants barred plaintiff
from retaking possession of the equipment.

        Plaintiff sued alleging that defendants were in breach of the contract and that their post-
contract retention of the equipment constituted conversion. Defendants countersued, seeking in
part a declaration that they were the owners of the disputed equipment under terms of the
contract. Plaintiff moved the trial court for immediate possession of the equipment, providing an
inventory of the equipment along with certificates of title for the motor vehicles in defendants’
possession. The trial court granted plaintiff “temporary possession” of the property. Defendants
moved the court for summary disposition of plaintiff’s conversion claims, i.e., tort claims, based
on governmental immunity. Defendants argued that they were engaged in a governmental
function and that plaintiff failed to plead an exception to the government tort liability act
(GTLA), MCL 691.1401 et seq. Plaintiff contended that defendants were not engaged in a
governmental function when they exerted control over the equipment because there was no legal
authority for that action. The trial court agreed with plaintiff and denied defendants’ motion.

                                         II. ANALYSIS

        The GTLA states, “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.” MCL 691.1407(1).3 Governmental function is defined as “activity
that is expressly or impliedly mandated or authorized by constitution, statute, local charter or
ordinance, or other law.” MCL 691.1401(b). Governmental immunity, however, does not
provide a shield for ultra vires activity which is “defined as activity not expressly or impliedly



2
  For ease of reference, we will not draw a distinction between actions taken by defendant
Romulus Community Schools and defendant Board of Education of Romulus Community
Schools and will refer to them collectively as defendants or the school district.
3
 Because plaintiff does not allege an exception to governmental immunity, the only issue is
whether the alleged tort occurred outside the exercise or discharge of governmental function.
Genesee Co Drain Comm’r v Genesee Co, 309 Mich App 317, 327; 869 NW2d 635 (2015).



                                                -2-
mandated or authorized by law.” Richardson v Jackson Co, 432 Mich 377, 381; 443 NW2d 105
(1989) (emphasis removed).
        It is not enough simply to show that an authorized activity has been performed in an
unauthorized manner. Id. at 387. Moreover, the GTLA’s definition of governmental function is
interpreted broadly and “requires only that there be some constitutional, statutory or other legal
basis for the activity in which the governmental agency was engaged.” Genesee Co Drain
Comm’r v Genesee Co, 309 Mich App 317, 327; 869 NW2d 635 (2015) (quotation marks and
citation omitted). To determine if an act constitutes a governmental function, we consider the
government’s general rather than specific conduct. Pardon v Finkel, 213 Mich App 643, 649;
540 NW2d 774 (1995). In addition, a party suing a governmental agency does not avoid
governmental immunity merely by alleging the existence of an intentional tort; it must be shown
that the tort, whether or not intentional, occurred “outside the exercise or discharge of a
governmental function.” Genesee Co Drain Comm’r, 309 Mich App at 328.

       As in many such cases, whether governmental immunity applies turns on how the activity
in question is defined. The school district contends that the pertinent activity is maintenance of
school property and entering into contracts with third parties for performance of that activity.
Those activities, along with acquisition4 of equipment, are plainly provided for by section 11a of
the Revised School Code, MCL 380.1 et seq.5 Plaintiff does not dispute that the school district is
authorized to perform these activities, but argues that those activities do not include conversion
of another’s property. Defendants respond that at most plaintiff asserts that the district has
performed an authorized activity—acquisition of maintenance equipment—in a manner that may
have been unauthorized.




4
 Black’s Law Dictionary (10th ed) defines “acquire” as “[t]o gain possession or control of; to
get or obtain.”
5
    MCL 380.11a states in relevant part:
                 (3) A general powers school district has all of the rights, powers, and
         duties expressly stated in this act; may exercise a power implied or incident to a
         power expressly stated in this act; and, except as otherwise provided by law, may
         exercise a power incidental or appropriate to the performance of a function related
         to operation of a public school and the provision of public education services in
         the interests of public elementary and secondary education in the school district,
         including, but not limited to, all of the following:

                                               * * *

                  (c) Except as otherwise provided in this section, acquiring, constructing,
         maintaining, repairing, renovating, disposing of, or conveying school property,
         facilities, equipment, technology, or furnishings. [MCL 380.11a(3)(c).]




                                                  -3-
        Defining the activity in question is very often conclusive of the immunity issue and this
case serves to demonstrate why that determination must be made on a case-by-case basis. We
agree with plaintiff that even what can be construed as an authorized activity may be
unauthorized where the manner of accomplishing it is so improper that the authorized activity
underlying it is of little relevance. For example, while MCL 380.11a(3)(c) authorizes a school to
acquire equipment in order to maintain school property, we do not believe that a school district
would be engaged in a governmental function if it simply stole a tractor from a nearby farm.
When a governmental agency seeks to “accomplish illegally what it could not accomplish
legally, the activity [is] ultra vires . . . .” Smith v Dep’t of Public Health, 428 Mich 540, 610; 410
NW2d 749 (1987).

         Here, however, the conversion claim turns on which party has properly interpreted the
contract and it is not disputed that defendants are authorized to enter into contracts and to
exercise and defend their rights under those contracts. Asserting alleged contract rights does not
constitute an ultra vires activity nor is it “the intentional use or misuse of a badge of
governmental authority for a purpose unauthorized by law . . . .” Id. at 611. Accordingly, we
conclude that plaintiff’s conversion claims are barred by governmental immunity. Our
conclusion does not, however, leave plaintiff without a remedy. Plaintiff has sued in contract
and if it prevails is entitled to all contract damages. 6

      Reversed and remanded to the trial court for proceedings consistent with this opinion.
We do not retain jurisdiction.



                                                              /s/ Christopher M. Murray
                                                              /s/ Deborah A. Servitto
                                                              /s/ Douglas B. Shapiro




6
  By contrast, the farmer whose tractor was taken in our hypothetical would not have a contract
remedy.



                                                 -4-
