-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

KEVIN RANKIN,

Plaintiff-Appellee, UNPUBLISHED February 24, 2015

v No. 318385 Wayne Circuit Court CITY OF HIGHLAND PARK, HUBERT YOPP, WILLIAM R. FORD, LORENZO VEAL, II, and SANDY MCDONALD, LC No. 11-015733-NO

Defendants-Appellants,
and

POLICE OFFICER WHITE and JOHN DOES 1- 10,

Defendants.

Before: M URRAY , P.J., and H OEKSTRA and W ILDER , JJ.

P ER C URIAM

.

Defendants City of Highland Park (the City), Hubert Yopp, Will iam R. Ford, Lorenzo Veal, II, and Sandy McDonald, appeal as of right the order deny ing, in part, their motion for summary disposition premised on governmental immunity. For the reasons explained in this opinion, we affirm in part, rever se in part, and remand to the trial court for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

The present dispute centers on plaintiff’s use of a building o wned by the City and, in particular, his claims that defendants are liable for his loss of personal property in the building. Relevant to this dispute, the City had, at one time, rented the building in question to Achievable Visions, a business entity ultim ately owned by Patricia Reid Po rter. In December of 2010, Porter arranged to sell many of the busin ess’s assets to plaintiff, wh o planned to continue the operation of a community center in the building. Plaintiff alleges that he took possession of the building from Achievable Visions with the hopes of buying the building f rom the City. Specifically, plaintiff contends that, while purchase negotiations were ongoi ng, he arranged to rent the building from the City and he maintains that he in fact paid th e City rent for January, February,
and March of 2011. Plaintiff di d not, however, have a written rental agreement with the City.-2- The City initiated eviction proceedings against Achievable Vis ions and, in January 2011, obtained a judgment requiring Ach ievable Visions to vacate the premises. In March of 2011, the City then obtained an order of eviction pertaining to Achievabl e Visions. These eviction proceedings did not name plaintiff as a party. Nonetheless, gi ven the eviction order, on March 24, 2011, the City changed the locks on the building, which pre vented not only entry by Achievable Visions, but also by plaintiff, who asserts he was i mproperly denied access to the building and prevented from ret rieving personal property. At s ome point, vandals broke into the building, which plaintiff alleges resulted in the loss of some of his personal pr operty. Plaintiff did, however, file an action in district court and he succeeded in gaining entry to the building to retrieve personal property pursu ant to an inventoried list crea ted by plaintiff.

Although plaintiff succeeded in gaining access to the building to retrieve personal property, he subsequently filed the present civil suit in circu it court seeking monetary damages. His complaint in circuit court consisted of 12 counts: (1) dam ages for breach of MCL 600.2918, (2) negligence, (3) gross negligence, (4) common law conversion , (5) statutory conversion pursuant to MCL 600.2919a, (6) thef t, (7) intentional interfere nce with an advantageous business relations, (8) a claim under 42 USC § 1983 premised on the taki ng of property without due process of law, (9) “intentiona l tort,” (10) failure to refund rent, (11) defamation, and (12)
“intentional inflic tion of emotional damage and the tort of outrageous conduct.”

Following discovery, defendants moved for summary disposition under MCR 2.116(C)(7), (C)(8), and (C)(10). Relevant to the present appe al, defendants asserted immunity
from suit under the Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq. in relation to plaintiff’s claims of neglig ence, gross negligence, conversi on, intentional inte rference with a business relationship, defamation, and “intentional tort.” Def endants also argued that plaintiff’s claims of theft, “intentional tort,” and failure to refund rent were not cognizable tort claims in Michigan, and that plaintiff’s cl aims for defamation and intent ional infliction of emotional damage were plainly meritless on their face, such that they mus t fail as a matter of law. Further, defendants maintained that, because there was no written lease, there was no landlord-tenant relationship between plaintiff a nd defendants, and that, in the absence of such a relationship, plaintiff’s claim under MCL 600.2918 must fail. Regarding plai ntiff’s § 1983 claim, defendants maintained plaintiff had not been deprived of due process and t hey disputed plaintiff’s claim that he had a property interest in the building or its contents, particularly when he had removed items pursuant to the district court order. On the whole, defendants argued that all of defendants 12 claims should be dismissed, either because of the applicability of governmental immunity or because plaintiff’s claims were without merit.

The trial court granted summary disposition regarding plaintif f’s claims of theft, defamation, and intentional infliction of emotional damage, but denied summary disposition regarding the rest of plaintiff’ s claims based on its conclusio n that questions of fact remained-3- relating to the applicability of governmental immunity and the viability of the individual claims. Defendants now appeal as of right. 1 See MCR 7.203(A); MCR 7.202(6)(a)(v).

II. STANDARD OF REVIEW

This Court reviews the grant or denial of a motion for summarydisposition de novo.

Nuculovic v Hill , 287 Mich App 58, 61; 783 NW2d 124 (2010). Questions of law, including questions regarding the applicab ility of governmental immunity, are also reviewed de novo. Id. ; Herman v Detroit , 261 Mich App 141, 143; 680 NW2d 71 (2004). Summarizing the s tandards applicable under MCR 2.116, this Court has explained:

Subrule (C)(7) permits summary disposition where the claim is barred by an applicable statute of limitations. In reviewing a motion un der subrule (C)(7), a court accepts as true the plaintiff’s well-pleaded allegations of fact, construing them in the plaintiff’s favor. The Court must consider affidav its, pleadings, depositions, admissions, and any other documentary evidence sub mitted by the parties, to determine whether a genuine issue of material fact exists. These materials are considered only to t he extent that they are admis sible in evidence.

A motion for summary disposition under subrule (C)(8) tests th e legal sufficiency of the pleadings alone. Where the parties rely on documentary evidence, appellate courts proceed under the standards of revie w applicable to a motion made under MCR 2.116(C)(10), or (C)(7).

A motion made under MCR 2.116(C)(10) tests the factual support for a claim, and should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law[.] When the burden of proof at trial would rest on the nonmoving party, the nonmovant may not rest upon mere allegations or denials in the pleadings, but must, by documentary evidence, set forth specific facts showing that there is a genu ine issue for trial. But again, such evidence is only considered to the extent that it is admissible. A genuine issue of material fact ex ists when the record, drawing all reasonable inferences in favor of the nonmoving party, leaves open an issu e upon which

1 Plaintiff has not filed a cross appeal. Consequently, we do n ot address the propriety of the trial court’s grant of summa ry disposition regarding plaintiff’s clai ms of defamation, intentional infliction of emotional harm, and theft. See generally Turcheck v Amerifund Fin, Inc , 272 Mich App 341, 351; 725 NW2d 684 (2006). We also decline to consider plaintiff’s claim of
“intentional tort” because we know of no such claim in Michigan . Under the heading of “intentional tort,” plaintiff fails to identify a specific inte ntional tort and instead alleges that governmental immunity does not apply insofar as defendants’ con duct constituted one or more intentional torts. In other words, the claim is not for a sepa rate or distinct injury, but rather an assertion that governmental immunity does not apply. We find i t unnecessary to address this as
an individual claim outside the c ontext of the specific intenti onal torts asserted by plaintiffs,
which are discussed below.-4- reasonable minds could differ. [ Nuculovic , 287 Mich App at 61-62 (citations omitted).]

III. IMMUNITY FROM TORT LIABILITY UNDER THE GTLA

We begin our analysis with defendants’ assertion of immunity u nder the GTLA, and, for the reasons explained below, we conclude that defendants were e ntitled to immunity in relation to plaintiff’s tort claims of negligence, gross negligence, com mon law conversion, statutory conversion under MCL 600.2919a, and intentional interference wi th a business relationship. Consequently, the trial court er red in denying defendants’ moti on for summary disposition pursuant to MCR 2.116(C)(7) in r elation to these claims.

A. THE CITY

Under the GTLA, the City quali fies as a governmental agency. See MCL 691.1401(a), (d), and (e). With certain narrowly construed exceptions, “a g overnmental agency is immune from tort liability if the govern mental agency is engaged in th e exercise or discharge of a governmental function.” MCL 691.1407(1); Nawrocki v Macomb Co Rd Comm , 463 Mich 143, 156, 158; 615 NW2d 702 (2000). There are six exceptions to thi s broad grant of governmental immunity, including, relevant to the present case, the propriet ary function exception contained in MCL 691.1413, which states:

The immunity of the governmental agency shall not apply to acti ons to recover for bodily injury or property dama ge arising out of the perform ance of a proprietary function as defined i n this section. Proprietary f unction shall mean any activity which is conducted primarily for the purpose of pr oducing a pecuniary profit for the governmental agency, excluding, howeve r, any activity normally supported by taxes or fees. . . .

Under this exception, “[t]o constitute a proprietary function an activity (1) must be conducted primarily for the purpose of pr oducing a pecuniary profit, and (2) it cannot be normally supported by taxes and fees.” Ward v Mich State Univ (On Remand) , 287 Mich App 76, 85; 782 NW2d 514 (2010) (quotation marks and citation omitted). To det ermine whether an activity is conducted primarily for pecuniary profit, although not disposit ive, courts may consider whether the activity actually generates a profit. Transou v City of Pontiac , 283 Mich App 71, 74; 769 NW2d 281 (2009). It may also be c onsidered “where the profit i s deposited and where it is spent

. . . .” Id. (citation omitted).

Notably, a plaintiff seeking to bring suit against a governmen tal agency bears the burden of pleading his or her claim “in avoidance of governmental immu nity.” Hannay v Dep’t of Transp , __ Mich __, __; __ NW2d __ (2014), s lip op at 9. Stated more fully:

Governmental immunity inheres in governmental agencies as a characteristic of government and, accordingly, there is a presu mption that a governmental agency is immune from suit unless an exception to governmental immunity applies to the facts of the case. In order to rebut the presumption of immunity, a party suing a unit of government must plead in avoi dance of governmental immunity. The party suing the governmental agencymust plead-5- facts that-if true-demonstrate that an exception to governmenta l immunity applies: A plaintiff pleads in avoidance of governmental immunity by sta ting a claim that fits within a statutory exception or by pleading facts that dem onstrate that the alleged tort occurred during the exercise or discharge of a non governmental or proprietary function. [ Yono v Dep’t of Transp , 306 Mich App 671, __; __ NW2d __ (2014), slip op at 5 (quotation marks and citations omitted) .]

In regard to the proprietary f unction exception, the burden to plead in avoidance of governmental immunity requires a plaintiff to plead facts demonstrating that the activities were conducted for the primary purpose of producing a monetary profit, and that su ch activity was not the type normally supported by taxes and fees. See MCL 691.1413; Williams v City of Cadillac , 148 Mich App 786, 791; 384 NW2d 792 (1985).

In this case, regarding the assertion that the City was engage d in a proprietary function, plaintiff’s complaint included the following conclusory stateme nt:

48. That the defendants are not entitled to gov ernmental immun ity because the
defendants were at the time of the events engaged in a propriet ary function . . . .

Similarly, in plaintiff’s response to defendants’ motion for su mmary disposition, filed after more than a year of discovery in this case, plaintiff recited some g eneral principles regarding the propriety function exception and stated that “the City is liabl e for damages under MCLA 691.1413 damages [sic] arising out of performance of propriety function.”

Far from setting forth specific facts to plead in avoidance of governmental immunity, plaintiff’s conclusory assertions fail to identify a specific a ctivity conducted by the City, to demonstrate that the activity was proprietary, or to explain ho w plaintiff’s alleged damages arose from the unspecified activity. Further, even assuming plaintif f means to suggest that the City’s rental and/or potential sale of the building in question was a proprietary function, plaintiff fails to allege, or to draw our attention to any evidence, to suggest th at the City undertook this activity
for the primary purpose of turning a monetary profit. See MCL 691.1413; Williams , 148 Mich App at 791. Although there is evidence that plaintiff paid ren t for the building, there has been, for example, no allegation that the City actually turned a prof it relating to the building or that the City rented the building primarily to produce a profit; nor is there any explanation regarding how any funds received by the City were used. See Dextrom v Wexford Co , 287 Mich App 406, 421- 423; 789 NW2d 211 (2010).

In short, plaintiff has not satisfied his burden of pleading f acts to demonstrate the applicability of the proprietaryfunction exception, and in suc h circumstances the City is entitled to the protections of governmental immunity provided by MCL 691 .1407(1). Cf. Williams , 148 Mich App at 791. This immunity extends to all of plaintiff’s t ort claims, both negligence-based and intentional, specifically: negligence, gross negligence, co mmon law conversion, conversion under MCL 600.2919a, and intentional interference with a busine ss relationship. See generally MCL 691.1407(1); Nawrocki , 463 Mich at 156 (recognizing that immunity for governmental agencies extends to alltort liability); Smith v Dep’t of Pub Health , 428 Mich 540, 544; 410 NW2d 749 (1987) (holding that there is no intentional tort exce ption to governmental immunity).-6- B. INDIVIDUAL DEFENDANTS

An individual governmental employee may be entitled to immunity under the GTLA, provided that he or she raises and proves entitlement to immuni ty as an affirmative defense. Odom v Wayne Co , 482 Mich 459, 479; 760 NW2d 217 (2008). In particular, immun ity from negligent-based tort liability is provided to individual governmental actors by MCL 691.1407(2), which provides:

Except as otherwise provided in this section, and without regar d to the discretionary or ministerial nature of the conduct in question, each officer and employee of a governmental agency, each volunteer acting on beh alf of a governmental agency, and each member of a board, council, commi ssion, or statutorily created task force of a governmental agency is immu ne from tort liability for an injury to a person or damage to property cause d by the officer, employee, or member while in the course of employment or servic e or caused by the volunteer while acting on behalf of a governmental agency i f all of the following are met:

(a) The officer, employee, member, or volunteer is acting or re asonably believes he or she is acting within the s cope of his or her authority.

(b) The governmental agency is engaged in the exercise or disch arge of a governmental function.

(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not amount to gross negligence that is the proximate cause of the injury o r damage.

In other words, with regard to negligent acts, while in the cou rse of employment, “[a]n employee of a governmental agency acting w ithin the scope of his or her authority is immune from tort liability unless the employee' s conduct amounts to gross neglig ence that is the proximate cause of the injury.” Kendricks v Rehfield , 270 Mich App 679, 682; 716 NW2d 623 (2006). As used in MCL 691.1407(2), “gross negligence” means “conduct so reckle ss as to demonstrate a substantial lack of concern for whether an injury results.” MC L 691.1407(8). Further, to constitute the proximate cause o f an injury, the alleged gross negligence must be “the one most immediate, efficient, and direct cause of the injury or damage. ” Robinson v Detroit, 462 Mich 439, 462, 613 NW2d 307 (2000).

Pursuant to MCL 691.1407(3), 2 government officials may also be immune from liability for intentional torts, provided that they satisfy the test set forth in Ross v Consumers Power Co

, 420 Mich 567; 363 NW2d 641 (1984). See Odom , 482 Mich at 471-473. Specifically, applying
the Ross test, an individual will be entitled to individual governmenta l immunity from an intentional tort, by showing:

2 Specifically, this provision states: “Subsection (2) does not alter the law of intentional torts as it existed before July 7, 1986.” MCL 691.1407(3).-7- (a) The acts were undertaken during the course of employment an d 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 underta ken with malice,
and

(c) the acts were discretionary, as opposed to ministerial. [ Odom , 482 Mich at 480.]

“[A] governmental employee does not act in ‘good faith’ if the employee acts ‘maliciously or with a wanton or reckless disreg ard of the rights of another.’ ” Radu v Herndon & Herndon Investigations, Inc , 302 Mich App 363, 386; 838 NW2d 720 (2013), quoting Odom , 482 Mich at
474. To establish willful and wanton misconduct there must be an intent to harm or “such indifference to whether harm will result as to be the equivalen t of a willingness that it does.”

Odom , 482 Mich at 475 (quotation marks and citation omitted). Disc retionary acts have been defined as those which “require personal deliberation, decision and judgment.” Id. at 476. In contrast, “ministerial” acts are those which “constitute merelyan obedience to orders or the performance of a duty in which t he individual has little or no choice.” Id.

In this case, to assess the indi vidual defendants’ entitlement to immunity from tort liability, to begin with, it may be helpful to briefly identify the individual defendants and their purported roles in plaintiff’s allegations. Defendants Yopp an d Ford are the mayor and city attorney respectively, both of whom plaintiff alleges engaged i n sale negotiations pertaining to the building and agreed to rent the premises to plaintiff. Def endant McDonald is the City’s director of community and economic development, who plaintiff m aintains also had some role in negotiations pertaining to the s ale of the building. Defendant Veal is the City’s chief of police. According to plaintiff’s complain t, defendants Veal and McDonal d were somehow involved with changing the locks to the buildi ng, or at least present at the time the locks were changed. Plaintiff’s complaint also alleges that defendant Ford in parti cular told plaintiff he could not retrieve personal propert y absent a court order.

Turning to plaintiff’s specific claims, plaintiff’s allegation s of negligence and gross negligence involve the assertion that defendants assumed contro l of plaintiff’s personal property, thereby assuming a duty to prote ct those items, and that the fa ilure to permit him access to his property and to protect his personal property from vandals cons tituted a breach of that duty, resulting in damage or loss to his personal property. Consider ing plaintiff’s allegations of negligence and gross negligence, it is clear that the individua l defendants are immune from tort liability relating to these claims. Initially, we note that it appeared to be largely uncontested in
the trial court that defendants acted in the course of their em ployment and that they were acting, or reasonably believed they were acting, within the scope of th eir authority when they committed the acts in question. 3 Consequently, the individual defendants may only be held liab le for

3 For instance, plaintiff specifically conceded in his brief res ponding to defendants’ motion for summary disposition that the indi vidual defendants “were all ac ting in their capacity as-8- plaintiff’s claims of negligence if their conduct amounted to g ross negligence that was the proximate cause of plaintiff’s injuries. See Kendricks , 270 Mich App at 682. Clearly then, plaintiff’s claim of ordinary negligence must fail because it i ncludes no claim that defendants were grossly negligence, i.e., that their conduct was “so reckl ess as to demonstrate a substantial
lack of concern for whether an i njury results.” MCL 691.1407(8 ).

Ostensibly, plaintiff’s complaint alleged gross negligence by asserting defendants acted with indifference amounting to willful and wanton disregard for plaintiff’s property. But, it is nonetheless clear that no material question of fact remains reg arding defendants’ purported gross negligence or the issue of proximate causation. Regarding gros s negligence, even if some or all of the individual defendants pre vented plaintiff from retrievin g his property, the fact remains that they acted pursuant to an eviction order, they ultimately allow ed plaintiff to retrieve property from the building, and the property in question remained in a locked building. Nothing about
these circumstances evidences conduct so reckless as to demonst rate a substantial lack of concern for whether an injury resulted to plaintiff’s property. See MCL 691.1407(8). In terms of proximate causation, we note that in regard to these claims, plaintiff’s claim of loss pertains to his personal property. At this time, plaintiff has in fact ret rieved many of his personal items from the building, and those items that were lost or damaged we re lost due to acts by third party vandals. Given this more immediate and direct cause of any dam age to plaintiff’s property, the
individual defendants cannot be co nsidered the proximate cause of plaintiff’s losses. In short, the individuals were neither grossly negligent nor the proximat e cause of plaintiff’s damages. Thus, they were entitled to immunity under MCL 691.1407(2) withregard to plaintiff’s claims of negligence and gross negligence.

Setting aside plaintiff’s negligence based torts, we now consi der the individual defendant’s immunity in relation to plaintiff’s intentional tor ts, namely common law conversion, statutory conversion under MC L 600.2919a, and intentional inter ference with a business relationship. To reiterate, ind ividual governmental actors are immune from intentional torts, if: “(a) The acts were undertaken dur ing the course of employment a nd 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, a nd (c) the acts were discretionary, as opposed to ministerial.” Odom , 482 Mich at 480.

Again, in this case, it appears there was no dispute in the tr ial court that the acts in question were undertaken by the individual defendants during th e course of employment and that they were acting, or reasonably believed they were acting, in t he scope of their authority. On the record presented, we are also pe rsuaded that that no material question of fact remains regarding whether the acts in question were discretionary in nature and u ndertaken in good faith. That is, plaintiff describes the governme ntal actors in question making decisions regarding the building, including decisions to sell and/ or rent the building and the de cision to pursue an eviction against
Achievable Visions. Given the d ecision-making inherent in this conduct, these acts were plainly discretionary. Likewise, having obtained an eviction order, th e appropriate steps necessary to

governmental employees at the time that they did the acts asserted.” In terms of negligencebased claims, plaintiff contende d only that a question of fact remained regarding the issues of gross negligence and proximate causation.-9- maintain the peace and to protect the building and its contents , including the decision to change the locks, involved decisions t hat were discretionary in nature

.

Furthermore, although some of plaintiff’s property was ultimat ely lost due to the activities of vandals, neither plaintiff’s complaint nor the ev idence presented demonstrate that
the individual defendants acted w ith malice. On the contrary, the individual defendants sought to lawfully evict Achievable Visions and to maintain the peace whi le executing a duly obtained eviction order. There is no evidence they intended harm to pla intiff or his property, or that they
acted with indifference to whether such harm would result. See Radu , 302 Mich App at 386. Such assertions are belied by the fact that plaintiff’s propert y remained in a locked building and that plaintiff succeeded in retrieving much of his personal pro perty from the building unharmed. In these circumstances, no material question of fact remains to whether the acts in question were discretionary in nature and undertaken in good faith. Conseque ntly, the individual defendants were entitled to immunity from pl aintiff’s intentional tort cla ims. See Odom , 482 Mich at 480.

In sum, under the GTLA, the individual defendants were entitle d to immunity relating to plaintiff’s tort claims, i.e., negligence, gross negligence, co mmon law and statutory conversion, and intentional interference with a business relationship. 4 Consequently, the trial court erred in denying defendants’ motion for summary disposition under MCR 2. 116(C)(7) regarding these
claims.

IV. FAILURE TO REFUND RENT

4 We note that, in the trial court, defendants asserted that Yop p, Ford, and Veal were entitled to absolute immunity. They reiterate this argument on appeal and now also contend for the first time that McDonald should receive absolute immunity. We recogn ize that certain high ranking executive officials are entitled to absolute immunity pursuant to MCL 691.1407(5). See Petipren v Jaskowski , 494 Mich 190, 204; 833 NW2d 247 (2013). Absolute immunity on ly applies, however, provided that the highest ranking executive o fficial is acting within the scope of his or her executive authority, MCL 691.1407(5), and whether he or she acted within the scope of his or her executive authority requires consideration of the “the nature of the specific acts alleged, the posi tion held by the official alleged to have performed the acts, the charter, ordinances, or other local law d efining the official's authorit y, and the structure and allocation of powers in the particular level of government.” Petipren , 494 Mich at 212-213 (citation omitted). Although it seems plain that Yopp, Ford and Veal are, according to the Highland Park Charter, the highest ranking executive officials of a level of governmen t, defendants have not provided us with a meaningful discussion of the authority enjoyed by these officials by virtue of their positions. Given that defendants have not seen fit to provide a discussion of the executive authority possessed by each offici al as demonstrated by local l aw defining the officials’ powers, we decline to search for authority supporting their position th at these officials are absolutely
immune on the facts of this case. See Spires v Bergman , 276 Mich App 432, 444; 741 NW2d 523 (2007). Thus, although we are persuaded that the individua l defendants may claim immunity under MCL 691.1407(2), we find that, on the record pre sented, defendants have not established their right to absolute immunity under MCL 691.1407 (5).-10- In his complaint, plaintiff maintains that he had a verbal agr eement with the City to rent the building and that he paid the City rent for January, February, and March of 2011. He contends that the City changed the locks on March 24, 2011, the reby preventing his access to the building. Given the lockout, plaintiff maintains that he is en titled to return of a prorated portion the rent paid to the City for M arch, specifically an amount tot aling $650. Initially, it must be noted that, considering the substance of plaintiff’s allegation , his claim regarding failure to refund rent sounds in contract and not in tort. Although defen dants have characterized the claim as one sounding in tort, for which defendants maintain they are immune, we are not bound by the parties’ arguments or labels, but may look “to the substance of the claim asserted.” Local 1064, RWDSU AFL-CI0 v Ernst & Young , 449 Mich 322, 327 n 10; 535 NW2d 187 (1995). See also In re Bradley Estate , 494 Mich 367, 387-388; 835 NW2d 545 (2013). Because this cla im is one sounding in contract, rather than tort, governmental immunity d oes not apply. See In re Bradley

Estate , 494 Mich at 387 & n 47; Koenig v South Haven , 460 Mich 667, 675; 597 NW2d 99 (1999). Consequently, the trial court did not err in denying d efendants’ motion for summary disposition based on governmental immunity grounds relating to plaintiff’s claim for failure to
refund rent.

Aside from their assertion of governmental immunity, defendant s also argue on appeal that the trial court erred in denying their motion for summary disposition relating to plaintiff’s claim for a refund of rent because plaintiff was required to jo in any demand for a refund of rent to the summary proceedings in the district court. This argumen t is not properly before this Court because defendants appeal as of right under MCR 7.202(6)(a)(v), meaning that, pursuant to MCR 7.203(A)(1), this Court’s review i s limited to the portion of the trial court’s order pertaining to defendant’s assertions of governmental immunity. See Pierce v Lansing , 265 Mich App 174, 182; 694 NW2d 65 (2005). In any event, “a party may join a claim for damages in a summary eviction proceeding up to the district court’s jurisdictional l imits, but it is not required to do so.” 1300 LaFayette East Coop, Inc v Savoy , 284 Mich App 522, 527; 773 NW2d 57 (2009), citing MCL 600.5739(1). Thus, plaintiff wa s not required to join his demand for return of rent in the district court proceedings, and defendants were not entitled to summary disposition on this basis. On remand, plaintiff may procee d with his demand for return of rent.

V. VIOLATION OF MCL 600.2819

Plaintiff also alleged in his complaint that defendants did no t include him in the eviction proceedings and thus unlawfully interfered with his possessory interests in the property in
violation of MCL 600.2918. 5 It is plaintiff’s position tha t he obtained a possessory inte rest in the property by virtue of his verba l agreement with the City and hi s payment of rent to the City

5 MCL 600.2918, oftentimes referred to as the “self help statute ,” permits those whose possessory interest in a property have been unlawfully interfer ed with to recover actual damages and in some cases possession of property. See MCL 600.2918(2). The statute is structured to prohibit forceful “self-help” by landlords, and it is “intended to prevent parties from taking the law into their own hands in circumstances which are likely to r esult in a breach of the peace.”

Deroshia v Union Terminal Piers , 151 Mich App 715, 718-719; 391 NW2d 458 (1986).-11- through March of 2011. Relating to this claim, defendants argu e on appeal that the trial court erred in failing to grant them summary disposition premised on governmental immunity grounds as well as the absence of a landlord-tenant relationship with p laintiff, which they contend is required to establish a cause of action under MCL 600.2918. Inparticular, defendants maintain that only the City Council could bind the City to a rental agre ement. Further, based on the absence of a written lease or purchase agreement, defendants co ntend any alleged oral contract was barred by the statute of frauds, and that plaintiff was thu s not a tenant described in MCL

600.2918.

Although on appeal defendants have characterized plaintiff’s c laim under MCL 600.2918 as a tort action for which they are entitled to governmental im munity, they did not argue as such in the trial court. Their summary disposition brief in the tri al court makes the argument that they were entitled to summary disposition regarding plaintiff’s MCL 600.2918 claim because, in the absence of a binding written agreement, there was no landlord-t enant relationship and thus no cognizable claim under the statute. In other words, defendants ’ assertion of governmental immunity relating to this claim is unpreserved, and, given the insufficient appellate briefing of this issue by defendants, we decline to address this argument f or the first time on appeal. See Wiggins v City of Burton , 291 Mich App 532, 573-574; 805 NW2d 517 (2011).

To the extent defendants raise arguments involving the statute of frauds and the existence
of a landlord-tenant relati onship for purposes of MCL 600.2918, those issues are outside the realm of governmental immunity and thus not properly before thi s Court because our review is limited to the portions of the trial court’s order denying defe ndants’ claims of governmental immunity. See Pierce , 265 Mich App at 182; MCR 7.202(6)(a )(v); MCR 7.203(A)(1). We leave
it to the trial court to address these issues in the first inst ance on remand.

VI. 42 USC 1983

Finally, in his complaint, plaintiff also raised a federal 42 USC 1983 claim, asserting a denial of due process premised on defendants’ refusal to grant plaintiff access to the building and defendants’ retention of his per sonal property without involvin g him in the eviction proceedings. As explained below, we conclude that the individual defendants were entitled to qualified immunity under federal law and that therefore these defendants should have been granted summary disposition under MCR 2.116(C)(7) in respect to plainti ff’s § 1983 claim. Insofar as defendants also assert the City s hould be granted summary dispo sition relating to this claim, these arguments are not properly before this Court because they fall outside the arena of governmental immunity. We therefore decline to address these a rguments and, on remand, plaintiff’s § 1983 claim may proceed against the City.

A. QUALIFIED IMMUNITY

Section 1983 provides a mechanism for the redress of constitut ional violations. See By Lo Oil Co v Dep’t of Treasury , 267 Mich App 19, 30; 703 NW2d 822 (2005). In states:

Every person who, under color of any statute, ordinance, regula tion, custom, or usage, of any State or Territory or the District of Columbia, s ubjects, or causes to be subjected, any citizen of the United States or other person within the-12- jurisdiction thereof to the deprivation of any rights, privileg es, or immunities secured by the Constitution and laws, shall be liable to the pa rty injured in an action at law, suit in equity, or other proper proceeding for r edress. . . . [42 USC 1983.]

This provision “is not itself an independent source of substant ive rights; rather it merely provides a remedy for the viol ation of rights guara nteed by the federal constitution or feder al statutes. . . .” By Lo Oil Co , 267 Mich App at 30. In order to sustain a cause of action un der § 1983, the plaintiff must establish that: ( 1) the defendant acted under c olor of state law; (2) the conduct deprived the plaintiff of consti tutional rights or a right secu red by the laws of the United States; and (3) the deprivation of ri ghts occurred without due process of law. Mettler Walloon, LLC v Melrose Twp , 281 Mich App 184, 195; 761 NW2d 293 (2008).

Actions under § 1983 are outside the GTLA, meaning that the GT LA will not provide immunity against a § 1983 suit. See Mack v Detroit , 467 Mich 186, 195; 649 NW2d 47 (2002). Nonetheless, individual government al actors may be immune from suit under § 1983 in accordance with the immunity recognized under federal law. In particular, certain officials— such as the President, judges, legislators, and prosecutors—enj oy absolute immunity. See Mitchell v Forsyth , 472 US 511, 520; 105 S Ct 2806; 86 L Ed 2d 411 (1985). Other governmental officials may be en titled to qualified immunity, w hich a defendant may invoke as a defense in order to avoid the burden of standing trial. Walsh v Taylor , 263 Mich App 618, 635; 689 NW2d 506 (2004). Specifically, “[t]he doctrine of qualifie d immunity protects government officials from liability for civil damages insofar as their con duct does not violate clearly established statutory or constitu tional rights of which a reaso nable person would have known.”

Pearson v Callahan , 555 US 223, 231; 129 S Ct 808; 172 L Ed 2d 565 (2009) (citati on omitted).

Once a defendant invokes qualified immunity, a plaintiff has t he burden of overcoming this assertion at the pretrial stage. Lavigne v Forshee , __ Mich App __, __; __ NW2d __ (2014), slip op at 6-7. “To negate a defense of qualified immunity and avoid summary [disposition], the plaintiff need not present absol ute proof, but must offer more than mere allegations.” Ontiveros v City of Rosenberg , 564 F3d 379, 382 (CA 5, 2009) (citation omitted). The applic ability of qualified immunity poses a question of law for the courts. Morden v Grand Traverse Co , 275 Mich App 325, 340; 738 NW2d 278 (2007). Although the steps for assessing qualified immunity need not be considered in any particular order, see Pearson , 555 US at 236, the Sixth Circuit has described the process as follows:

Qualified immunity involves a thr ee-step inquiry. First, we de termine whether, based upon the applicable law, the facts viewed in the light mo st favorable to the plaintiffs show that a constitutional violation has occurred. Second, we consider whether the violation involved a clearly established constituti onal right of which a reasonable person would have know n. Third, we determine whethe r the plaintiff
has offered sufficient evidence “to indicate that what the offi cial allegedly did was objectively unreasonable in light of the clearly established co nstitutional rights.” [ Feathers v Aey , 319 F3d 843, 848 (CA 6 2003) (citation omitted.]

Thus, “government officials performing discretionary functions generally are shielded from liability for civil damages in sofar as their conduct does not v iolate clearly established statutory or-13- constitutional rights of which areasonable person would have k nown.” Harlow v Fitzgerald

, 457 US 800, 818; 102 S Ct 2727; 73 L Ed 2d 396 (1982). “For a right to be clearly established, ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing vi olates that right.’ ” Feathers , 319 F3d at 848 (citations omitted). The “‘objective legal reasonableness standard’ analyzes claims of i mmunity on a fact-specific, caseby-case basis to determine whether a reasonable official in the defendant’s position could have believed that his conduct was lawful, judged from the perspecti ve of the reasonable official on
the scene.” Cochran v Gilliam , 656 F3d 300, 306 (CA 6, 2011).

In this case, plaintiff asserted that he possessed a property right, both in his personal belongings in the building and in his right to occupy the build ing pursuant to an alleged verbal agreement. He claims defendants interfered with his possessory interests and deprived him of property without due process of l aw, in violation of the Fourthand Fourteenth Amendments, because he was locked out of the building, and kept from his pe rsonal belongings, without being included in the eviction proceedings. Relevant to plaintiff’s claims, a “seizure” of property potentially implicating Fourth A mendment rights “occurs where there is some meaningful interference with an individual's possessory interests in that property.” Soldal v Cook Co, Ill

, 506 US 56, 63; 113 S Ct 538; 121 L Ed 2d 450 (1992) (citation o mitted). With regard to plaintiff’s due process claim, g enerally “individuals must rece ive notice and an opportunity to be heard before the Government deprives them of property.” United States v James Daniel Good Real Prop , 510 US 43, 48; 114 S Ct 492; 126 L Ed 2d 490 (1993). Relevan t to the issue of evictions, although government action evicting a tenant solely at the behest of a landlord could
amount to a constitutional viola tion, action to assist a tenant ’s eviction pursuant to a court order is typically considered obj ectively reasonable. See Radvansky v City of Olmsted Falls , 395 F3d 291, 304 (CA 6, 2005), citing Soldal , 506 US at 71-72.

Turning to the present facts, e ven supposing that plaintiff ha d a protected property right,
the individual defendants are en titled to qualified immunity be cause plaintiff has not shown that
the individual defendants took objectively unreasonable action in light of a clearly established constitutional right. See Feathers , 319 F3d at 848. First, regarding Y opp, the mayor, while ther e are allegations that he had a role in negotiations pertaining t o the rent and/or sale of the building,
there has been no demonstrati on that Yopp had involvement with securing the eviction order from the district court or that he was present at the time of i ts effectuation. In such circumstances, Yopp had no personal involvement in the proceedi ngs which would constitute an interference with plaintiff’s property rights or that could be considered unreasonable under the circumstances. See generally Hansen v Cannon , 122 Fed Appx 265, 269 (CA 7, 2004) (concluding that, relative to eviction proceedings, only offici als who “intervene and actively participate in the seizure” face liability for their actions). Moreover, plaintiff’s allegations that Yopp somehow conspired to obtain the eviction order and that he directed the lockup of the building are unsupported, and thes e mere allegations are insuff icient to meet plaintiff’s burden of overcoming Yopp’s asserti on of qualified immunity. See Ontiveros , 564 F3d at 382.

Second, turning to Ford, as with Yopp, there is nothing to sug gest that Ford was present for the lockout and plaintiff’s conspiracy allegations are insu fficiently supported to defeat Ford’s invocation of qualified immunity. See id. In contrast to Yopp, as the city attorney, Ford did take part in securing the eviction or der from the district court. W e fail to see, however, what right of plaintiff’s Ford violated by seek ing eviction of Achievable Vis ions or how Ford can be-14- considered objectively unreasonable for pursuing eviction proce edings against Achievable Visions given that entity’s ackno wledged failure to remit rent or land contract payments. Viewed objectively, we see nothing to suggestthat Ford acted i n an unreasonable manner in light of a clearly established constitutional right.

Finally, McDonald and Veal, as c hief of police and director of community and economic development respectively, were present for the effectuation of the eviction order, namely, the changing of the building’s locks. To the extent that they were allegedly involved with changing the building’s locks, we see nothing objectively unreasonable i n their conduct given that they acted pursuant to a duly obtained eviction order. The order of eviction directed the removal of Achievable Visions “and other occupants from the premises” and indicated that “peaceful possession” of the premises should be returned to the landlord, i.e., the City. Given this order, those actors present at the scene for the changing of the locks were not objectively unreasonable in believing that they acted lawfully when they attempted the p eaceable return of the property to the City’s possession. See Radvansky , 395 F3d at 304-305 (CA 6, 2005), citing Soldal , 506 US

at 71-72.

In sum, plaintiff has not met his burden of showing that the i ndividual defendants were not entitled to qualified immunity. Given the applicability of qualified immunity, the individual defendants were entitled to summary disposition under MCR 2.116 (C)(7) in respect to plaintiff’s § 1983 claim.

B. FAILURE TO STATE A CLAIM UNDER § 1983

Aside from their arguments regarding qualified immunity, defen dants assert on appeal that they were entitled to su mmary disposition under MCR 2.116( C)(8) because plaintiff failed to
state a claim on which relief coul d be granted. In particular, defendants contend that plaintiff failed to identify a protected pr operty interest for purposes o f his due process claim, that he could not show a constitutional violation by defendants because the p roperty was damaged or taken by vandals, that the actions in que stion were not undertaken pursu ant to an official policy of the City, and that plaintiff failed to demonstrate that available p ost-deprivation state remedies, including the district court proc eedings, were inadequate to pr otect his rights.

To the extent these arguments relate to the individual defenda nts, they need not be considered given the individual defendants’ entitlement to qual ified immunity as discussed

supra . Insofar as defendants offer these arguments as reasons for g ranting summary disposition to the City, once again, we find that these issues are not prop erly before the Court. To the extent that defendants argue that the trial court erred in failing to dismiss the § 1983 claim pursuant to MCR 2.116(C)(8), we are constrained from addressing this issue by the fact that this is an appeal as of right from the trial court’s denial of defendants’ motionfor summary disposition on the grounds of governmental immunity. See Pierce , 265 Mich App at 182; MCR 7.203(A)(1); MCR 7.202(6)(a)(v). That is, defendants’ various arguments and pot ential defenses to the City’s liability under § 1983 do not provide the City with immunity fr om suit. See Leatherman v Tarrant Co Narcotics Intelligence & Coordination Unit , 507 US 163, 166; 113 S Ct 1160; 122 L Ed 2d 517 (1993) (“[U]nlike various government officials, munic ipalities do not enjoy immunity from suit—either absolute or qualified—under § 1983.”); see als o Swint v Chambers Co Com'n

, 514 US 35, 43-48; 115 S Ct 1203; 131 L Ed 2d 60 (1995). Becaus e these issues do no involve-15- questions of governmental immunity, they are not properly befor e this Court at this time. See

Pierce , 265 Mich App at 182.

VII. CONCLUSION

In sum, the trial court erred in denying defendants’ motion fo r summary disposition, premised on governmental immunity grounds, in relation to the C ity and the individual defendants regarding plaintiff’s tort claims of negligence, gro ss negligence, common law and statutory conversion, and intent ional interference with a busin ess relationship. We thus remand for entry of summary disposition on these counts. Likewise, th e individual defendants enjoy qualified immunity from plaintiff’s § 1983 claim, and they are entitled to entry of summary disposition on remand rel ating to this claim.

Plaintiff’s claim for unused re nt sounds in contract, not tort , and it is thus not subject to the GTLA. Consequently, the trial court did not err in denying summary disposition regarding plaintiff’s demand for a refund of rent. Plaintiff’s claims un der MCL 600.2918 against all defendants may also proceed on remand, as may his § 1983 claim against the City. Although defendants now claim governmental immunity relating to plaintif f’s claim under MCL 600.2918, we decline to address this unpreserved argument because it has been insufficiently briefed by defendants on appeal. To the exte nt defendants attempt to argu e the merits of these claims, or any of plaintiff’s claims, such arguments are beyond the bounds of governmental immunity and not properly before this Court at this time.

Affirmed in part, reversed in part, and remanded to the trial court for further proceedings consistent with this opinion. W e do not retain jurisdiction. No taxable costs pursuant to MCR 7.219, neither party having prevailed in full.

/s/ Christopher M. Murray
/s/ Joel P. Hoekstra
/s/ Kurtis T. Wilder