            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



DANIEL MURRAY,                                                     UNPUBLISHED
                                                                   April 23, 2019
               Plaintiff-Appellee,

v                                                                  No. 341967
                                                                   Wayne Circuit Court
DETROIT LAND BANK AUTHORITY,                                       LC No. 16-009806-CH

               Defendant-Appellant

and

CITY OF DETROIT, RICKMAN ENTERPRISE
GROUP, JOHN DOE #1, and JOHN DOE #2

               Defendants.


Before: LETICA, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.

PER CURIAM.

        Defendant Detroit Land Bank Authority (DLBA) appeals by right the trial court’s order
denying in part its motion for summary disposition under MCR 2.116(C)(7) (governmental
immunity) and (C)(10) (genuine issue of material fact). We reverse in part and remand for
further proceedings.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

       Plaintiff had resided at 15745 Quincy in Detroit (the property), since the early 1960s.
Despite plaintiff’s belief that he had paid delinquent taxes on the property, a tax foreclosure
occurred and, allegedly unbeknownst to plaintiff, title to the property was eventually transferred
to DLBA in 2014,1 although plaintiff continued to reside at the property without incident.
DLBA is a Michigan public body created under the Michigan Land Bank Fast Track Act,
MCL 124.751 et seq., that is responsible for disposing of abandoned, vacant, or blighted property
within the City of Detroit. After plaintiff learned of DLBA’s interest in the home, he contacted
numerous state and local officials about his occupancy of the property, and claims to have been
assured by DLBA’s Director of Public Affairs that the property would not be demolished.
Nonetheless, DLBA’s contractor, defendant Rickman Enterprises Group, removed all of
plaintiff’s belongings from the home and demolished the residence in July 2016.

         In August 2016, plaintiff filed suit against DLBA, the City of Detroit, Rickman
Enterprises Group, and John Does #1 and #2,2 in part raising claims against DLBA for unlawful
eviction, conversion, violation of procedural due process and unconstitutional search and seizure
under the Michigan Constitution, violation of due process and unlawful search and seizure under
the United States Constitution and 42 USC 1983, gross negligence, and respondeat superior
liability for the actions of other defendants. Eventually, 3 DLBA moved for summary disposition
under MCR 2.116(C)(7) and (C)(10), arguing in part that it was immune from liability for
plaintiff’s gross negligence and respondeat superior claims and that plaintiff’s federal
constitutional claims were deficient because plaintiff had failed to allege or otherwise establish
that the alleged violation of his rights was the result of an official custom or policy of DLBA.

       The trial court denied DLBA’s motion on those claims, 4 stating:

       [DLBA] filed a [motion for summary disposition] claiming [plaintiff] failed to
       establish [an] exception to governmental immunity as to . . . count seven, gross
       negligence, and count 8 responde[a]t superior. . . . So [plaintiff] is left with
       count[s] 3, violation[] of due process; count 5, unlawful search and seizure; count
       7, gross negligence and count 8, responde[a]t superior. With respect to count 3,
       the violation of due process and count five[,] the unlawful search and seizure, the
       Court is going to respectfully deny [] summary disposition based on . . . the cases
       of [Fuentes v Shevin, 407 US 67; 92 S Ct 1983; 32 L Ed 2d 556 (1972), and


1
 Plaintiff claimed to have been unaware of these events because Wayne County had recorded his
address incorrectly and plaintiff consequently had not received any notices.
2
  Defendants City of Detroit, Rickman Enterprises Group, and John Does #1 and #2 are not
parties to this appeal.
3
  DLBA initially filed a motion for summary disposition under MCR 2.1116(C)(8) and (C)(10),
which the trial court denied. DLBA then filed a second summary disposition motion under MCR
2.116(C)(7) and (C)(10), raising the defense of governmental immunity to plaintiff’s tort claims
and asserting that plaintiff could not demonstrate a genuine issue of material fact regarding his
constitutional claims.
4
  The trial court granted DLBA’s motion regarding plaintiff’s unlawful eviction, conversion, and
Michigan constitutional claims. At the summary disposition motion hearing, plaintiff’s counsel
stated that plaintiff would not contest the dismissal of those claims with respect to DLBA only.


                                               -2-
       Flatford v City of Monroe, 17 F3d 162 (CA 6, 1994)]. As to count seven, gross
       negligence, this Court finds plaintiff has submitted evidence that could establish
       gross negligence[.] * * * [W]hether a governmental employee’s conduct
       constituted gross negligence that proximately caused the complain[ed] of injury
       under MCL 691.1407[] is generally a question of fact, but[,] if reasonable minds
       could not differ[,] the Court may grant summary disposition. . . . Count 8[,]
       which alleges that [DLBA] is liable for [defendant] Rickman’s action under the
       the[ory] of responde[a]t superior, the Court is also going to deny [DLBA’s]
       motion. Questions related to the existence and scope of an agency relationship
       are questions of fact, not law. . . .

The trial court then entered an order on January 8, 2018 consistent with its ruling. This appeal
followed.

                              II. GOVERNMENTAL IMMUNITY

       The parties agree that the trial court erred by not dismissing plaintiff’s claims of gross
negligence and respondeat superior liability as to DLBA under MCR 2.116(C)(7). We also
agree. “[C]laims of governmental immunity under MCR 2.116(C)(7) present a question of law,
which we review de novo.” Cannon Twp v Rockford Pub Sch, 311 Mich App 403, 414; 875
NW2d 242 (2015).

        Under the Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq., a
governmental entity is immune from tort liability if it is engaged in the exercise or discharge of a
governmental function. MCL 691.1407(1). While a governmental employee may be held liable
for gross negligence under certain circumstances, a governmental entity maintains its immunity
“when engaged in the exercise or discharge of a governmental function unless the plaintiff
establishes the existence of a statutorily created exception to that immunity.” Odom v Wayne
Co, 482 Mich 459, 478; 760 NW2d 217 (2008) (citation and quotations omitted).

        Here, plaintiff did not plead an exception to governmental immunity that applied to
DLBA; moreover, none of the exceptions found in the GTLA applicable to governmental entities
encompass gross negligence or respondeat superior liability for the gross negligence of its
alleged agents.5 Therefore, under the GTLA, DLBA, a governmental entity, is immune from suit
based on gross negligence and respondeat superior liability for the acts of its alleged agents. As
the parties agree, the trial court erred by focusing its analysis on the standard applicable to
governmental employees as opposed to governmental entities. In sum, because DLBA was
engaged in a governmental function and plaintiff did not plead a statutory exception to



5
 “The statutory exceptions to the governmental immunity provided to the state and its agencies
are the highway exception, MCL 691.1402; the motor-vehicle exception, MCL 691.1405; the
public-building exception, MCL 691.1406; the proprietary-function exception, MCL 691.1413;
the governmental-hospital exception, MCL 691.1407(4); and the sewage-disposal-system-event
exception, MCL 691.1417(2) and (3).” Odom, 482 Mich at 478, n 62.


                                                -3-
governmental immunity and none would be applicable, we agree with the parties that the trial
court erred by failing to dismiss those claims as to defendant DLBA.

                          III. FEDERAL CONSTITUTIONAL CLAIMS

        DLBA also argues that the trial court erred by denying its summary disposition motion as
to plaintiff’s federal constitutional claims. It asserts that the trial court applied the incorrect legal
framework applicable to determining municipal liability for federal constitutional violations and
42 USC 1983. We conclude that in this appeal of right we lack jurisdiction to review the trial
court’s determination as to these claims.

        This Court has jurisdiction of an appeal of right of a final judgment or order.
MCR 7.203(A)(1). DLBA timely filed its claim of appeal of right of the trial court’s January 8,
2018 order, citing MCR 7.202(6)(a)(v). MCR 7.202(6)(a)(v) defines “final judgment” or “final
order” to include “an order denying governmental immunity to a governmental party, including a
governmental agency, official, or employee under MCR 2.116(C)(7) or an order denying a
motion for summary disposition under MCR 2.116(C)(10) based on a claim of governmental
immunity.”

        MCR 7.203(A)(1) further provides that where the appeal of right derives from the denial
of a summary disposition motion based on governmental immunity (under MCR 7.202(6)(a)(v)),
the appeal is “limited to the portion of the order with respect to which there is an appeal of
right.” MCR 7.203(A)(1). Governmental immunity under the GTLA does not protect a
governmental agency from claims that it, by custom or policy, violated the state or federal
constitution. See Monell v Dep’t of Social Serv, 436 US 658, 690; 98 S Ct 2018; 56 L Ed 2d 611
(1978); Mack v City of Detroit, 467 Mich 186, 195; 649 NW2d 47 (2002); Jones v Powell, 462
Mich 329, 336; 612 NW2d 423 (2000).

        Indeed, DLBA does not argue otherwise, but rather encourages us to exercise our
discretion to consider this issue as on leave granted.6 We decline to do so in light of factual
issues, such as whether DLBA’s agents acted under an official custom or policy, that are best
resolved in a final judgment or order of the trial court before our consideration of them on
appeal. See Waait & Sons Elec Co v Dehko, 230 Mich App 582, 585; 584 NW2d 372 (1998);
citing Guzowski v Detroit Racing Ass’n, 130 Mich App 322, 325-327; 343 NW2d 536 (1983).




6
  This Court has occasionally done so in the past when “regardless of the specific basis of the
trial court’s ruling on a motion for summary disposition” the effect was “to deny a defendant’s
claim of immunity.” Walsh v Taylor, 263 Mich App 618, 626; 689 NW2d 506 (2004); see also
Watts v Nevils, 477 Mich 856; 720 NW2d 755 (2006). However, because governmental
immunity under the GTLA was never available to shield defendant from plaintiff’s constitutional
claims, we find these cases distinguishable on that basis and decline to depart from our usual
practice of limiting our review to that of final judgments and orders. MCR 7.203(A)(1);
MCR 7.202(6).


                                                  -4-
        Reversed in part and remanded for further proceedings consistent with this opinion.7 We
do not retain jurisdiction.



                                                           /s/ Anica Letica
                                                           /s/ Amy Ronayne Krause
                                                           /s/ Mark T. Boonstra




7
  For the benefit of the further proceedings below, we note that the correct legal framework for
addressing a constitutional claim for municipal liability based on custom or policy begins with
“whether there was a direct causal link between a municipal policy or custom and the alleged
constitutional deprivation.” City of Canton v Harris, 489 US 378, 385; 103 L Ed 2d 412 (1989).
In this regard, the policy or custom must be “the moving force” behind the constitutional
violation in order for liability under 42 USC 1983 to attach. Monell, 436 US at 694-695. Going
forward, the trial court should also keep in mind our Supreme Court’s recent analysis of
municipal liability for claims under 42 USC 1983 found in Johnson v Vanderkooi, 502 Mich
751, 761-771; 918 NW2d 785 (2018).


                                              -5-
