The opinion
STATE OF MICHIGAN
COURT OF APPEALS
KEVIN MODIN, UNPUBLISHED
June 2, 2015
Plaintiff-Appellant,
v No. 320452
Ogemaw Circuit Court
WEST BRANCH REGIONAL MEDICAL LC No. 12-658488-CD
CENTER and THOMAS OESCH,
Defendants-Appellees.
Before: GLEICHER, P.J., and K. F. KELLY and SERVITTO, JJ.
PER CURIAM.
The circuit court summarily dismissed plaintiff Kevin Modin’s tort claims against his
employer and individual supervisor based on their decision to terminate plaintiff’s employment
and report his conduct to the police. Plaintiff’s former employer is a government-owned hospital
and enjoyed immunity from suit. Moreover, plaintiff’s evidence raised no genuine issues of
material fact regarding his supervisor’s tort liability and to rebut defendants’ evidence that the
supervisor acted in good faith, thereby failing to overcome the supervisor’s claim of individual
immunity. We affirm.
I. BACKGROUND
Plaintiff was employed by defendant West Branch Regional Medical Center as an x-ray
technician from April 10, 2006 until January 31, 2011. On Friday, January 28, 2011, plaintiff
made three threatening comments in the presence of his coworker, Rachelle Izworski. The final
comment was overheard by another employee, Wanda Vincent. Specifically, plaintiff, who had
a reputation for owning multiple firearms, stated: “I’m going to bring a gun into work and take
some people out,” “I’m going to bring in an AK-47 and shoot up the place,” and “I guess I will
have to bring a gun into work and show them I mean business or a fake gun just to scare them.”
Izworski reported these comments to plaintiff’s supervisor, defendant Thomas Oesch, who
brought his concerns to the medical center’s human resources department and safety committee.
On Monday, January 31, 2011, several medical center officials convened to discuss
plaintiff’s comments. The group decided to terminate plaintiff’s employment and report the
matter to the police. Law enforcement officers delivered the termination notice to plaintiff at his
home and questioned him about his comments. Plaintiff allegedly “admitted that he did make a
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comment on the date in question” and stated that “he understood why the hospital would be
concerned.” Plaintiff claimed he was simply venting during the course of a bad day. Plaintiff
voluntarily surrendered his 21 firearms to the officers and signed an acknowledgment that he
received the termination notice.
The prosecutor subsequently charged plaintiff with the felony offense of making a threat
of terrorism, MCL 750.543m. Following plaintiff’s arrest, he filed a grievance with his union
protesting his termination. Union representatives advised plaintiff that they would await the
resolution of his criminal charges to determine if his discharge was legitimate. Plaintiff
eventually entered an agreement under which the prosecutor promised “to delay the prosecution
in this matter for 12 months” and then dismiss the felony charges, if plaintiff committed no other
criminal offenses or serious traffic violations, sought “a mental health assessment and follow[ed]
all the directives of his mental health provider,” permitted his attorney to retain possession of his
firearms until the close of the 12-month period, and refrained from entering the medical center.
Plaintiff agrees that through this agreement he pleaded to a reduced misdemeanor charge. The
union then informed plaintiff that it would not pursue his grievance with the medical center.
Plaintiff filed suit against Oesch and the medical center, challenging his termination and
their pursuit of criminal charges against him. Plaintiff claimed that Vincent informed him that
she had not heard his alleged comments but that Oesch threatened her employment if she
declined to make a statement. Plaintiff implied that Izworski had motive to lie because she
gained additional work hours after his termination. Plaintiff further cited a past incident of
workplace violence and threats by another employee whom the medical center had thereafter
retained on staff as an example of disparate treatment. Based on these allegations, plaintiff
raised claims of tortious interference with business expectations, breach of his collective
bargaining agreement, malicious prosecution, and abuse of process. Defendants sought summary
disposition, claiming the protection of governmental immunity and citing legal and factual
deficiencies in the complaint. The circuit court granted defendants’ motion and this appeal
followed.1
II. ANALYSIS
We review a trial court’s decision on a motion for summary disposition de
novo. Wayne Co v Wayne Co Retirement Comm, 267 Mich App 230, 243; 704
NW2d 117 (2005). A motion under MCR 2.116(C)(8) “tests the legal sufficiency
of the complaint on the basis of the pleadings alone to determine if the opposing
party has stated a claim for which relief can be granted.” Begin v Mich Bell Tel
Co, 284 Mich App 581, 591; 773 NW2d 271 (2009). We must accept all well-
pleaded allegations as true and construe them in the light most favorable to the
nonmoving party. Id. The motion should be granted only if no factual
development could possibly justify recovery. Id.
1
Plaintiff does not challenge the dismissal of his collective bargaining claim.
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A motion under MCR 2.116(C)(10) “tests the factual support of a
plaintiff’s claim.” Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506
(2004). “Summary disposition is appropriate under MCR 2.116(C)(10) if there is
no genuine issue regarding any material fact and the moving party is entitled to
judgment as a matter of law.” West v Gen Motors Corp, 469 Mich 177, 183; 665
NW2d 468 (2003). “In reviewing a motion under MCR 2.116(C)(10), this Court
considers the pleadings, admissions, affidavits, and other relevant documentary
evidence of record in the light most favorable to the nonmoving party to
determine whether any genuine issue of material fact exists to warrant a trial.”
Walsh, 263 Mich App at 621. “A genuine issue of material fact exists when the
record, giving the benefit of reasonable doubt to the opposing party, leaves open
an issue upon which reasonable minds might differ.” West, 469 Mich at 183.
[Zaher v Miotke, 300 Mich App 132, 139-140; 832 NW2d 266 (2013).]
In reviewing a summary disposition motion based on governmental immunity under
MCR 2.116(C)(7), we must consider all documentary evidence submitted by the parties,
accepting as true the contents of the complaint unless affidavits or other appropriate documents
specifically contradict them. Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 (2008). “If
the pleadings or other documentary evidence reveal no genuine issues of material fact, the court
must decide as a matter of law whether the claim is statutorily barred.” Holmes v Mich Capital
Med Ctr, 242 Mich App 703, 706; 620 NW2d 319 (2000). If, however, a genuine issue of
material fact exists such that factual development could provide a basis for recovery, summary
disposition is inappropriate. Guerra v Garratt, 222 Mich App 285, 289; 564 NW2d 121 (1997).
A. GOVERNMENTAL IMMUNITY
The circuit court properly dismissed the direct-liability claims against the medical center
on governmental immunity grounds. Pursuant to MCL 691.1407(1), “a governmental agency is
immune from tort liability if the governmental agency is engaged in the exercise or discharge of
a governmental function,” unless the plaintiff’s claims fall within a statutory exception to the
immunity granted by law. The medical center is a government owned and operated hospital
fitting the definition of a governmental agency for purposes of MCL 691.1407(1). And plaintiff
did not plead his direct-liability claims in avoidance of governmental immunity. “The six
statutory exceptions to governmental immunity [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).’ ”
Hannay v Dep’t of Transp, 497 Mich 45, 60 n 34; 860 NW2d 67 (2014), quoting Wesche v
Mecosta Co Road Comm, 480 Mich 75, 84 n 10; 746 NW2d 847 (2008). The “governmental-
hospital exception” applies only when suit is brought in connection with the provision of
“medical care or treatment,” MCL 691.1407(4), a situation not present in this case. Plaintiff
cited no other immunity exception under which the medical center could be liable.
Oesch, however, is a governmental actor, not an agency. His claim of governmental
immunity is therefore judged by different standards. Plaintiff raised claims of intentional torts
against Oesch (and against the medical center on respondeat superior grounds). Pursuant to
MCL 691.1407(3), we must determine whether Oesch would have enjoyed governmental
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immunity for these intentional torts under the common-law. Odom, 482 Mich at 472-473.
Immunity is extended for intentional tort liability if:
(a) The acts were undertaken during the course of employment and the employee
was acting, or reasonably believed that he was acting, within the scope of his
authority,
(b) the acts were undertaken in good faith, or were not undertaken with malice,
and
(c) the acts were discretionary, as opposed to ministerial. [Id. at 480.]
Oesch was acting in the course of his employment when he decided, along with other
medical center officials, to terminate plaintiff’s employment and report his conduct to the police.
Oesch was plaintiff’s supervisor and it was his duty to ensure that plaintiff obeyed the medical
center’s code of conduct. Oesch’s acts were also discretionary.
A ministerial officer has a line of conduct marked out for him, and has nothing to
do but to follow it; and he must be held liable for any failure to do so which
results in the injury of another. Ministerial acts constitute merely an obedience to
orders or the performance of a duty in which the individual has little or no choice.
[Id. at 475-476 (quotation marks and citations omitted).]
“Discretionary acts,” on the other hand, “require personal deliberation, decision and judgment.”
Id. at 476 (quotation marks and citation omitted). Oesch clearly exercised his judgment rather
than obeyed orders in determining the best response to plaintiff’s alleged comments. The more
difficult question is whether plaintiff created a genuine issue of material fact that Oesch acted
with malice and not in good faith. We address that question in relation to plaintiff’s individual
claims.
B. TORTIOUS INTERFERENCE
The circuit court did not err in dismissing plaintiff’s tortious interference with a business
relationship claim. Plaintiff contended that Oesch interfered with his business relationship with
the medical center by reporting to human resources and the safety committee that plaintiff had
threatened to bring a gun to work, resulting in his termination.
Tortious interference with a business relationship is “the intentional invasion of, or
interference with, property rights causing injury without just cause or excuse.” Laurence G Wolf
Capital Mgt Trust v City of Ferndale, 269 Mich App 265, 272; 713 NW2d 274 (2005) (quotation
marks and citation omitted). To establish such a claim, the plaintiff must prove: (1) “the
existence of a valid business relationship or expectancy,” (2) the defendant’s knowledge of that
relationship or expectancy, (3) “an intentional interference by the defendant inducing or causing
a breach or termination of the relationship or expectancy,” and (4) damages. Mino v Clio Sch
Dist, 255 Mich App 60, 78; 661 NW2d 586 (2003) (citation omitted). Only the third element is
disputed in this appeal.
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To establish an actionable intentional interference, a plaintiff must show that the
defendant intentionally committed a per se wrongful act or committed a lawful act “with malice
and unjustified in law for the purpose of invading the contractual rights or business relationship
of another.” CMI Int’l, Inc v Intermet Int’l Corp, 251 Mich App 125, 131; 649 NW2d 808
(2002) (quotation marks and citation omitted). “Where the defendant’s actions were motivated
by legitimate business reasons, its actions would not constitute improper motive or interference.”
Mino, 255 Mich App at 78 (emphasis added). To prove his claim, “the plaintiff must
demonstrate, with specificity, affirmative acts by the defendant that corroborate the improper
motive of the interference.” BPS Clinical Laboratories v Blue Cross & Blue Shield of Michigan,
217 Mich App 687, 699; 552 NW2d 919 (1996).
Plaintiff has not rebutted the evidence that Oesch was motivated by legitimate business
reasons in supporting termination of plaintiff’s employment. Oesch acted on employee reports
that plaintiff, whom he knew to own guns, threatened to bring a gun to work and shoot people.
While plaintiff claims that Izworski lied and Vincent was coerced by Oesch into making a false
report, Oesch’s decisions were vindicated by the resolution of the criminal proceedings. Plaintiff
pleaded guilty or nolo contendere2 to a misdemeanor in relation to his threats. Plaintiff’s
acceptance of criminal liability negates his claim that Oesch’s decision was unfounded.
Summary disposition was therefore supportable on governmental immunity as well as factual
grounds.
C. MALICIOUS PROSECUTION
Plaintiff also claimed that Oesch, and the medical center as Oesch’s employer, abused the
legal system and acted with malice in seeking out his prosecution on terrorism charges.
To prove a malicious prosecution claim, a plaintiff must show: (1) a criminal proceeding
initiated or continued by defendant against plaintiff; (2) termination of the proceeding in favor of
the accused; (3) the absence of probable cause for the proceeding; and (4) malice or a primary
purpose other than that of bringing an offender to justice. Matthews v Blue Cross & Blue Shield
of Michigan, 456 Mich 365, 378; 572 NW2d 603 (1998).
Neither Oesch nor the medical center actually initiated the criminal prosecution; rather,
Oesch reported a threat of violence by an employee to local law enforcement. In this regard, we
find Wilson v Sparrow Health Sys, 290 Mich App 149; 799 NW2d 224 (2010), instructive. In
Wilson, 290 Mich App at 151, the defendant athletic club conducted an internal investigation
after a man exposed himself to two female lifeguards, and concluded that the plaintiff was the
culprit. The defendant shared the results of its investigation when reporting the incident to the
police. The plaintiff was innocent, however, and the culprit struck again, leading to the arrest
and prosecution of the correct individual. Id. The plaintiff filed suit against the defendant
athletic club, asserting negligence and defamation claims. Id. at 151-152. Although the present
case involves an intentional court, this Court’s analysis is analogous:
2
It is unclear from the record in this civil matter which type of plea plaintiff entered in the
separate criminal proceeding.
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After defendants conducted a modest, preliminary internal investigation
following complaints of a crime, they turned the matter over to the police. It was
then in the hands of law enforcement officials to pursue the matter, and it was the
prosecutor’s decision whether the police had gathered sufficient evidence against
Wilson to bring criminal charges.
When a citizen places information or a complaint in the hands of the
police, even if the information is flawed, and then the police conduct their own
investigation and, with the prosecutor, determine that there is probable cause to
pursue the matter, that decision is entirely outside the authority or control of the
private citizen. [Id. at 152-153 (citation omitted).]
Similarly, here, Oesch and the medical center merely placed the information gathered during the
internal investigation into the hands of the police. The police conducted their own investigation
and the prosecutor decided to levy criminal charges against plaintiff. Oesch and the medical
center had no authority or control of the prosecutorial decision.
Moreover, the criminal proceedings did not terminate in plaintiff’s favor; he pleaded to a
crime. Plaintiff contends that the fact that he entered a plea does not necessarily mean that
probable cause existed for the prosecution of the offense. We need not reach this element given
that the criminal proceedings did not terminate in plaintiff’s favor. In any event, the prosecution
decided to charge plaintiff based on evidence uncovered during the police investigation: two
separate witnesses reporting three threats of violence. Probable cause was created by the
evidence, not plaintiff’s plea. Accordingly, the circuit court properly determined that dismissal
of plaintiff’s malicious prosecution claim was warranted both under MCR 2.116(C)(7) and (10).
D. ABUSE OF PROCESS
Plaintiff contends that Oesch abused the police investigatory process to pursue his
vindictive motives against him. “To recover upon a theory of abuse of process, a plaintiff must
plead and prove (1) an ulterior purpose and (2) an act in the use of process which is improper in
the regular prosecution of the proceeding.” Friedman v Dozorc, 412 Mich 1, 30; 312 NW2d 585
(1981). Explained in greater detail:
“The gravamen of the misconduct for which the liability stated in this section is
imposed is not the wrongful procurement of legal process or the wrongful
initiation of criminal or civil proceedings; it is the misuse of process, no matter
how properly obtained, for any purpose other than that which it was designed to
accomplish. Therefore, it is immaterial that the process was properly issued, that
it was obtained in the course of proceedings that were brought with probable
cause and for a proper purpose, or even that the proceedings terminated in favor
of the person instituting or initiating them. The subsequent misuse of the process,
though properly obtained, constitutes the misconduct for which the liability is
imposed under the rule stated in this section.” [Id. at 30 n 18, quoting 3
Restatement Torts, 2d, § 682, comment a, p 474.]
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A plaintiff may not merely state that a defendant had an ulterior motive. Rather, the plaintiff
must show that the defendant demonstrated and acted upon his improper motive through “a
corroborating act.” Vallance v Brewbaker, 161 Mich App 642, 646; 411 NW2d 808 (1987).
Plaintiff failed to adequately plead an abuse-of-process claim, supporting summary
disposition on legal and factual grounds. Plaintiff baldly asserted that Oesch used the police
investigatory process to cause vexation, trouble, embarrassment, and damage, and claimed that
Oesch should have known his report was false. Plaintiff has never explained why Oesch would
harbor ill will against him. He has cited no corroborating act beyond the police report to support
that Oesch maintained an ulterior motive. Although plaintiff explained a motive for Izworski to
fabricate allegations against him, he has not explained why Oesch would do so. Plaintiff implies
that the medical center’s decision not to fire another employee after a violent workplace incident
was evidence that Oesch and the medical center harbored an ulterior purpose to terminate him.
But plaintiff has not tied Oesch to the decision-making process in that prior incident and has not
presented any evidence from which the court could even conclude that the prior incident actually
occurred. Accordingly, the circuit court properly dismissed this claim as well.3
We affirm.
/s/ Elizabeth L. Gleicher
/s/ Kirsten Frank Kelly
/s/ Deborah A. Servitto
3
As plaintiff could not create triable issues on the elements of his claims against Oesch, the
circuit court also correctly dismissed his claims against the medical center based on vicarious
liability.
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