Costa v. Community Emergency Medical Services, Inc

BORRELLO, J.

(concurring in part and dissenting in part). I concur with the majority that the trial court’s decision to deny defendant’s motions for summary disposition was error requiring reversal for the reasons stated by the majority.

However, I strongly dissent from the majority’s attempt to enlarge the scope of this Court’s jurisdiction. I additionally dissent because I believe that this Court correctly asserted the application of the court rules at issue in Newton v State Police, 263 Mich App 251 ; 688 NW2d 94 (2004), as I explained in my dissent in Walsh v Taylor, 263 Mich App 618 ; 689 NW2d 506 (2004).

*586 Because my reason for dissenting in this case is identical to my reason for dissenting in Walsh, supra, I quote from my dissent in Walsh-.

The majority contends that when a trial court denies a motion for summary disposition on any basis where the defense of governmental immunity could be raised, this Court acquires jurisdiction to review all matters under MCR 7.203(A) and MCR 7.202(6)(a)(v). The majority states:

“We do not believe that our Supreme Court intended the court rule to be read so restrictively that governmental bodies would be forced through discovery and trial whenever their motion for dismissal is denied on grounds other than MCR 2.116(C)(7), merely because the plaintiff contends that the governmental agency is not immune. \.Ante at 625 (emphasis added).]”

Impliedly, if not outrightly stated, the majority believes that plaintiffs allege facts outside the scope of governmental immunity simply to avoid governmental immunity, and not because the cause of action is based in law or fact. Whether intended or not, the clear message of the majority is that this Court must now act as a guardian against a perceived onslaught of frivolous litigation that our trial courts are seemingly ill-equipped to discover. Accordingly, I reject the majority’s contention that plaintiff is filing a frivolous claim simply to avoid the defense of governmental immunity. Even assuming an onslaught of frivolous litigation, the trial courts—not this Court—are empowered to be the initial adjudicators of such perceived frivolous claims. However, the majority would have this Court become the court of initial jurisdiction to decide matters that may not have been raised at the trial court level, giving rise to another implied belief of the majority—that this Court should become a trier of fact. The concept of questions of fact being tried by the trier of fact, and not by panels of this Court, is still the jurisprudence of this state.

Thomas Jefferson understood the problems inherent when courts attempt to expand their statutory authority when he wrote:

*587 “Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judiéis est ampliare jurisdietionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. [Lipscomb & Bergh, eds, The Writings of Thomas Jefferson (Washington, D.C.; Thomas Jefferson Memorial Ass’n, 1903-1904), vol 15, p 277, Letter by Thomas Jefferson to William C. Jarvis, 1820.]”

This Court has taken great pains to distinguish between a motion brought under MCR 2.116(C)(7), (C)(8), and (C)(10). Wilson v Alpena Co Rd Comm, 263 Mich App 141 ; 687 NW2d 380 (2004). Similarly, the panel in Newton, supra, stated:

“The plain language of these court rules, interpreted in a common-sense fashion, lead us to conclude that this exception applies only to situations where the denial of summary disposition is directly based on a finding that the moving party is not entitled to government[al] immunity and not to a situation where, although a claim of governmental immunity has been asserted, the trial court denies a summary disposition motion because the party opposing summary disposition has stated a sufficient factual case to avoid summary disposition — in other words, as in this case, where the motion is actually disposed of as a MCR 2.116(C)(10) motion rather than a (C)(7) motion. [Newton, supra at 257 .]”

The Newton Court understood that there are differences between C(7) and C(10) motions. The majority in this case would eliminate such distinctions. This Court in Newton correctly stated and decided the case, in part, on these distinctions. As this Court stated in Newton, supra at 259:

“In our opinion, the trial court did not make a legal determination concerning whether defendant was entitled *588 to claim governmental immunity. Instead, the trial court made a determination that there were genuine issues of material fact to be resolved by the trier of fact. Therefore, the appeal in this case was taken from a (C)(10) determination rather than a (C)(7) determination. The order from which defendant claimed an appeal was therefore not a final order under MCR 7.202(7)(a)(v) and MCR 7.203(A)(1). Accordingly, defendant was required by the court rules to file an application for leave to appeal rather than a claim of appeal.”

Thus, where a trial court has not made a finding whether a defendant is governmentally immune, it is premature for this Court to do so. However, the defendants in Newton were not precluded from raising the defense of governmental immunity. They could have asked for this Court to decide the issue by filing an application for leave to appeal. Accordingly, I dissent. [Walsh, supra at 641 (emphasis in original).]