Opinion
No. 346542 No. 346565
04-23-2020
JENNIFER JANETSKY, Plaintiff-Appellee, v. COUNTY OF SAGINAW and CHRISTOPHER BOYD, Defendants-Appellants, and SAGINAW COUNTY PROSECUTOR'S OFFICE and JOHN McCOLGAN, Defendants. JENNIFER JANETSKY, Plaintiff-Appellee, v. COUNTY OF SAGINAW, JOHN MCCOLGAN, and CHRISTOPHER BOYD, Defendants-Appellants, and SAGINAW COUNTY PROSECUTOR'S OFFICE, Defendant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Saginaw Circuit Court
LC No. 15-028306-CL Before: FORT HOOD, P.J., and BECKERING and BOONSTRA, JJ. PER CURIAM.
In Docket No. 346542 of these consolidated appeals, defendants Saginaw County (the County) and Christopher Boyd (Boyd) appeal by right the portion of the trial court's November 7, 2018 order denying their motion for summary disposition under MCR 2.116(C)(7) (governmental immunity). In Docket No. 346565, the County, Boyd, and defendant John McColgan (McColgan) appeal by leave granted the portion of the order denying their motion for summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact). We reverse and remand for entry of an order granting summary disposition in favor of defendants.
See Janetsky v Saginaw Co, unpublished order of the Court of Appeals, entered March 20, 2019 (Docket No. 346565).
See id.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Plaintiff was employed as an assistant prosecuting attorney in the Saginaw County Prosecutor's Office from January 2010 until December 2015, when she resigned. At all relevant times, McColgan was the Saginaw County Prosecuting Attorney and Boyd was the Chief Assistant Prosecutor and plaintiff's supervisor.
Plaintiff was assigned a sexual assault case in October 2013 (the 2013 sexual assault case). The criminal defendant was charged with multiple counts of first-degree criminal sexual conduct (CSC-I). Plaintiff alleged in her complaint that in 2014, without her knowledge or approval, Boyd reached a plea deal with the defendant that included an agreement that the defendant would plead guilty to third-degree criminal sexual conduct (CSC-III) and be sentenced to probation; the agreement was reached and entered shortly before plaintiff's wedding, but plaintiff did not discover that the deal had been made until she returned to work. When plaintiff reviewed the file after returning to the office, she believed that Boyd had scored the sentencing guidelines incorrectly, had offered probation on a CSC-III conviction in violation of MCL 771.1(1), and had violated the Crime Victims Rights Act (CVRA) by failing to properly inform the victims. Although, according to plaintiff, Boyd objected to plaintiff's characterization of the plea deal, he ultimately signed a motion drafted by plaintiff to vacate the sentencing agreement. Subsequently, the trial court granted the motion to vacate the sentencing agreement and to allow the criminal defendant to withdraw his plea.
Plaintiff asserted in her complaint, and asserts in her briefs on appeal, that the deal approved by Boyd included only probation, not jail time. However, plaintiff testified at her deposition that the deal included probation and jail time, but not prison time. Further, plaintiff alleged that she drafted the motion to set aside the plea deal. That motion described the plea deal as including one year in county jail and attached the plea agreement, which stated, "Recommending 1 yr co. jail."
Plaintiff filed suit in November 2015, alleging that after she "reported these violations of law and informed McColgan and Boyd that she refused to acquiesce to them . . . [,] Boyd created a hostile [work] environment . . . ." Specifically, plaintiff alleged in her complaint, and testified in her deposition, that she had become afraid of Boyd since her report to McColgan, and that after the 2014 meeting, her duties had been altered and she was no longer "solely responsible for sex crimes charging." Further, plaintiff alleged that at a meeting in Boyd's office in June 2015, Boyd became enraged while discussing whether plaintiff should have kept him informed of developments in a case by text message. According to plaintiff, Boyd admitted that he was still angry about what had occurred with the 2013 sexual assault case, yelled at plaintiff, ordered her to sit down, and at one point briefly held a door to block her from leaving, causing her to fear for her physical safety. Plaintiff alleged in her complaint that in June 2015, her "doctors diagnosed her as psychiatrically disabled from working due to the hostile work environment created by Boyd and allowed to continue by McColgan" and that she was placed on medical leave, which continued "until December 15, 2015, at which time she involuntary resigned her employment . . . due to intolerable working conditions." Plaintiff's complaint alleged (1) violation of the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq.; (2) violation of public policy; (3) assault and battery; (4) intentional infliction of emotional distress; and (5) false arrest/false imprisonment.
Defendants sought summary disposition of plaintiffs' claims on various grounds, including governmental immunity and the absence of a genuine issue of material fact. The trial court granted summary disposition on all claims brought against the Saginaw County Prosecutor's Office and McColgan, as well as on plaintiff's claim of intentional infliction of emotional distress in its entirety (id.). However, the court denied defendants' motion for summary disposition with respect to plaintiff's claims of assault and battery and false imprisonment, both with respect to Boyd and with respect to the vicarious liability of the County, and also denied the motion with respect to her WPA claim and her public policy claim.
These appeals followed. On appeal, plaintiff does not challenge the dismissal of the claims against the Saginaw County Prosecutor's Office, the dismissal of plaintiff's intentional tort claims against McColgan on the grounds of absolute immunity, or the dismissal of her intentional infliction of emotional distress claim in its entirety.
II. INTENTIONAL TORT CLAIMS
The County and Boyd argue that the trial court erred by failing to dismiss plaintiff's intentional tort claims (i.e., assault and battery and false imprisonment) on governmental immunity grounds. We agree. This Court reviews de novo questions of statutory interpretation involving the application of governmental immunity. Jones v Bitner, 300 Mich App 65, 72; 832 NW2d 426 (2013); Co Rd Ass'n of Mich v Governor, 287 Mich App 95, 117-118; 782 NW2d 784 (2010). We also review de novo a trial court's decision to grant or deny summary disposition. Rory v Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005). "Summary disposition under MCR 2.116(C)(7) is appropriate when a claim is barred by immunity granted by law." Seldon v Suburban Mobility Auth for Regional Trans, 297 Mich App 427, 432; 824 NW2d 318 (2012). In reviewing a ruling under subrule (C)(7), this Court "consider[s] all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them." Seldon, 297 Mich App at 432-433 (citation omitted); see also Tarlea v Crabtree, 263 Mich App 80, 87; 687 NW2d 333 (2004).
Governmental agencies are generally immune from tort liability for actions taken in furtherance of governmental functions. MCL 691.1407(1). A "governmental agency" includes "the state or a political subdivision" such as a county. MCL 691.1401(a); MCL 691.1401(e). A "governmental function" is "an activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law." MCL 691.1401(b). The prosecution of a criminal suspect is a governmental function. See Payton v Detroit, 211 Mich App 375, 392; 536 NW2d 233 (1995). This includes "the decisions involved in determining which suspects should be prosecuted and which should be released." Id.
MCL 691.1407(2) provides that every "officer and employee of a governmental agency . . . shall be immune from tort liability for injuries to persons . . . caused by the officer . . . while in the course of employment or service," if that officer "is acting or reasonably believes he or she is acting within the scope of his or her authority," provided that the officer's conduct does not constitute "gross negligence that is the proximate cause of the injury or damage." Additionally, "there is no exception to governmental immunity for intentional torts committed by governmental employees exercising their governmental authority, and governmental employers may not be held liable for the intentional tortious acts of their employees." Mays v Governor, 323 Mich App 1, 68; 916 NW2d 227 (2019) (quotation marks and citations omitted).
MCL 691.1407(7)(a) defines "gross negligence" as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results." There is no allegation of gross negligence in this case.
In this case, the trial court stated the following regarding the County's assertions of governmental immunity:
[N]ow we're talking about . . . vicarious liability and absent an exception the Defendant's position is governmental immunity applies to the County therefore the County is out. However, Plaintiff alleges under [MCL 691.1407(3)] it does not alter the law of intentional torts as it existed before July 7th, 1986, citing the Ross versus Consumer's case at 420 Mich 567 (1989) where it was held that the governmental agency can be held liable under respondent superior vicarious liability when the individual [tortfeasor] acted during the course of his or her employment and within the scope of his or her authority and noting that, the Defendants are not liable under respondent superior for their employee's criminal acts that are beyond the scope of the . . . employer's business; however, they . . . can be responsible for misconduct as to actions to the Plaintiff during the course of their employment and in the scope of their authority . . . as a supervisor.
Here, governmental immunity has been pled. . . . [H]owever . . . you also have to look at three elements: acts were . . . undertaken during the course of employment, the employee was acting or reasonably believed that he was acting within the scope of his authority, the acts undertaken in good faith or were not undertaken with malice, the acts were discretionary and not ministerial. Now . . . that applies to the County and the issue is, well, is . . . the County immune[]? From what I have at this point . . . I find that . . . there can be vicarious
liability, not direct but vicarious, and as a result that motion is denied for purposes of summary disposition.Regarding Boyd, the trial court did not specifically mention governmental immunity, but stated that there was a question of fact regarding plaintiff's claims that Boyd assaulted, battered, and falsely imprisoned her.
We conclude that the trial court erred by concluding that the County could be held vicariously liable for alleged intentional torts committed by Boyd. This Court has frequently stated that a municipality may not be held vicariously liable for the intentional torts of its employees. See Mays, 323 Mich App at 68; Payton, 211 Mich App at 393 ("even if the officers were not engaged in the exercise of a governmental function within the scope of their employment, the city is nonetheless entitled to immunity because it cannot be held liable for the intentional torts of its employees"), citing Alexander v Riccinto, 192 Mich App 65, 71-72; 481 NW2d 6 (1991). This is true whether or not the employee acted in good faith or in the course of his employment:
If the factfinder determines that defendant . . . acted in good faith and in the course of his employment and was thus engaged in the exercise of a governmental function, the defendant city is immune, from tort liability. If the factfinder determines that defendant . . . did not act in good faith or in the course of his employment, the defendant city is still immune, because it cannot be held vicariously liable for the intentional torts of its employees. [Alexander, 192 Mich App at 71-72.]
Accordingly, although plaintiff argues that Boyd's conduct was so egregious as to be completely outside the scope of his employment, that argument does not aid her in establishing the County's vicarious liability. The trial court erred by denying the County's motion for summary disposition under MCR 2.116(C)(7) regarding plaintiff's tort claims. Seldon, 297 Mich App at 432.
Regarding Boyd's immunity as a governmental employee, to invoke his entitlement to governmental immunity from intentional tort claims, a governmental employee must establish that he was acting in the course of his employment, that his actions were, or he reasonably believed them to be, within his scope of authority, that his actions were taken in good faith or without malice, and that the actions were discretionary, rather than ministerial in nature. Odom v Wayne Co, 482 Mich 459, 473; 760 NW2d 217 (2008). Course of employment "embraces the circumstances of the work environment created by that relationship, including the temporal and spatial boundaries established," and also action "undertaken in furtherance of the employer's purpose." Backus v Kauffman (On Rehearing), 238 Mich App 402, 408; 605 NW2d 690 (1999), lv den 462 Mich 910 (2000). Scope of authority is the " 'reasonable power that an agent has been delegated or might foreseeably be delegated in carrying out the principal's business.' " Id. at 409, quoting Black's Law Dictionary (7th ed), p 1348.
The trial court's decision to grant summary disposition in favor of McColgan on plaintiff's intentional tort claims has not been challenged on appeal.
In this case, plaintiff does not dispute that her June 2015 meeting with Boyd took place in Boyd's office during normal working hours. Plaintiff testified that during the meeting they discussed how plaintiff should keep Boyd informed of developments in cases apt to draw media attention, but that Boyd also agreed that he was still angry over her handling of the sexual assault case.
In Schwartz v Golden, 126 Mich App 790, 795; 338 NW2d 218 (1983), this Court noted that our Supreme Court had held that "purely personal, non-work-connected, disputes and acts of such gross and reprehensible nature as to constitute intentional and wilful misconduct were outside the course of employment but that 'horseplay' and assaults resulting from the stresses, tensions, and associations of the working environment, human and material, were within the course of employment." Id., citing Crilly v Ballou, 353 Mich 303, 326-327; 91 NW2d 493 (1958).
Boyd's alleged conduct at the June 2015 meeting, taken as true, cannot reasonably be characterized as "non-work-connected," or of a "gross and reprehensible nature." Golden, 126 Mich App at 795 (citation omitted). Rather, this conduct, at most, resulted from "the stresses, tensions, and associations of the working environment." Id. Moreover, it is not disputed that it was within the scope Boyd's authority and discretion to meet with assistant prosecutors and to discuss issues related to the prosecution of cases.
Further, plaintiff did not raise a genuine issue of material fact concerning Boyd's lack of good faith. The good-faith standard concerns a defendant's honest belief and good faith as opposed to malicious intent. Odom, 482 Mich at 481. Malicious intent can be inferred if the defendant willfully intended to harm the plaintiff or demonstrated a reckless indifference to the possibility that his actions would cause harm. Id. at 475 (citations omitted). The record does not show that Boyd's allegedly tortious actions, whether or not they represented acceptable or professional behavior, were undertaken with malicious intent; again, these sort of workplace disputes do not constitute "intentional or willful misconduct" and are not of such a "gross and reprehensible nature" as to support a finding of malice. Golden, 126 Mich App at 795 (citation omitted). We conclude that the trial court erred by denying Boyd's motion for summary disposition under MCR 2.116(C)(7) regarding plaintiff's intentional tort claims. Seldon, 297 Mich App at 432. Because we reverse the trial court on this ground, we do not address defendants' additional argument that plaintiff was unable to establish a genuine issue of material fact regarding the elements of false imprisonment or assault and battery.
III. WPA CLAIM
The County, Boyd, and McColgan argue that the trial court erred by denying their motion for summary disposition under MCR 2.116(C)(10) regarding plaintiff's WPA claim, because plaintiff had not established a genuine issue of material fact that she had engaged in a protected activity prior to an adverse employment action. We agree.
We review de novo as a question of law a trial court's decision on a motion for summary disposition. Ford Credit Int'l Inc, 270 Mich App at 534. "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 v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). We review de novo issues of statutory interpretation as questions of law. People v Denio, 454 Mich 691, 698; 564 NW2d 13 (1997).
The WPA prohibits workplace retaliation against an employee who "reports or is about to report . . . a violation or a suspected violation of a law or regulation or rule . . . to a public body, unless the employee knows that the report is false . . . ." MCL 15.362; Rivera v SVRC Indus, Inc, 327 Mich App 446, 455; 934 NW2d 286 (2019). To survive summary disposition, a plaintiff must first establish a prima facie case that "(1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against, and (3) a causal connection exists between the protected activity and the discharge or adverse employment action." Pace v Edel-Harrelson, 499 Mich 1, 6; 878 NW2d 784, 787 (2016) (quotation marks and citation omitted). If a plaintiff establishes a prima facie case, the burden then shifts to the defendant employer to offer a legitimate reason for the adverse employment action, and a plaintiff may then offer evidence to demonstrate that the defendant's offered reason is pretextual. See Debano-Griffin v Lake Co, 493 Mich 167, 176-179; 828 NW2d 634 (2013); Roulston v Tendercare (Mich), Inc, 239 Mich App 270, 281; 608 NW2d 525 (2000).
A plaintiff need not be correct in reporting, or being about to report, an actual violation of the law in order to receive WPA protection; however, a plaintiff must reasonably believe that a violation has occurred. See M Civ JI 107.04 ("Plaintiff must reasonably believe that a violation of law or a regulation has occurred."); Smith v Gentiva Health Servs (USA) Inc, 296 F Supp 2d 758, 762 (ED Mich, 2003) ("the employee must have been . . . subjectively reasonable in the belief that the conduct was a violation of the law"); see also MCL 15.362 (stating that an employee is not entitled to WPA protection if the employee "knows the report is false.").
Decisions of lower federal courts are not binding on this Court, but may be persuasive. Vanderpool v Pineview Estates, LLC, 289 Mich App 119, 124 n 2; 808 NW2d 227 (2010).
In this case, the trial court found that a question of material fact existed regarding whether plaintiff was subjected to an adverse employment action after she reported to McColgan that Boyd had offered a plea bargain involving a jail sentence and probation instead of a prison term and failed to update the victims in connection with a plea proceeding in the 2013 sexual assault case. Plaintiff argued below and argues on appeal that Boyd's conduct was in violation of MCL 771.1(1), which forbids a sentence of probation for CSC-III, and the CVRA, MCL 780.751 et seq. Assuming, without deciding, that plaintiff suffered an adverse employment action and that her meeting with McColgan constituted a "report to a public body" under the WPA, we conclude that the trial court erred by finding a question of material fact regarding whether plaintiff had engaged in a "protected activity" under the WPA.
Plaintiff, in her deposition testimony, responded to the question of whether she thought Boyd was engaged in "criminal conduct" by stating that she believed Boyd "was engaged in unethical conduct." Plaintiff also admitted at her deposition that she did not report to any other agencies or public bodies that Boyd had violated either MCL 771.1(1) or the CVRA. However, she argued before the trial court, and argues on appeal, that she reported to McColgan in his capacity as the Saginaw County Prosecuting Attorney that Boyd had violated these laws. Plaintiff stated at her deposition that she was concerned about the "impact" of the plea deal on the office and that even if Boyd had not intended "to do anything improper" she was concerned about "the appearance of impropriety." She also testified that during this meeting with McGolgan, she stated that "as an office we needed to do the right thing and try to come up with a solution where we can fix the problem, keep the victims calm and move forward with the case." The result of this meeting was that McGolgan authorized plaintiff to file a motion to set aside the plea, ultimately signed by Boyd, stating that the Boyd had "inadvertently" scored the sentencing guidelines incorrectly.
Regarding the mixed jail-time and probation sentence offered under the plea agreement, we conclude that plaintiff could not have reasonably believed that this was a "violation of the law" under the WPA. Smith, 296 F Supp 2d at 762. Although MCL 771.1(1) does prohibit the trial court from imposing probation for a CSC-III conviction, it does not explicitly state that a sentence that combines jail time and probation is forbidden. More importantly, plaintiff has not provided any authority, and this Court has found none, supporting the idea that a prosecutor offering a plea deal that turns out to contain an invalid sentence "violates the law" for the purposes of the WPA. The trial court, not the prosecutor, is responsible for actually imposing a defendant's sentence, whether under a plea agreement or after a verdict. See People v Cobbs, 443 Mich 276, 282; 505 NW2d 208 (1993). The trial court is not bound by a plea agreement or sentencing recommendation. Id., see also People v Killebrew, 416 Mich 189, 208; 330 NW2d 834 (1982). None of the language in MCL 771.1(1) states or implies that the statute is violated if the prosecution offers or agrees to a sentence that includes probation for a CSC-III conviction. And we are not prepared to state that every plea agreement that contains an invalid sentence is a violation of the law under the WPA. Plaintiff, as a prosecutor, was undoubtedly aware of the ultimate responsibility of the trial court in imposing a sentence, and was also aware that discovering the invalidity of a sentence or proposed sentence under some specific statute is hardly a unique occurrence. The rules of criminal procedure and the sentencing process provide methods for catching and fixing these issues either before or after sentencing; we do not feel it necessary or appropriate to muddy the waters by stating that a prosecutor (or a defense attorney) violates the law by advocating for or agreeing to a particular sentence. We conclude that the trial court erred by finding a question of material fact on this issue.
Similarly, plaintiff has provided no authority that a prosecutor "violates" the CVRA under the WPA by failing to properly inform the victims. MCL 780.756(3) requires the prosecuting attorney to offer the victims of a crime "the opportunity to consult with the prosecuting attorney to obtain the victim's views about the disposition of the prosecution for the crime, including the victim's views about dismissal, plea or sentence negotiations, and pretrial diversion programs." As plaintiff acknowledges, the victims in the 2013 sexual assault case were offered the opportunity to consult with the prosecuting attorney and express these views, and were kept informed of the times and dates of hearings. The plain language of the CVRA does not require that the victims be kept constantly informed of every new development in a case. Moreover, it is not clear that it was Boyd's specific responsibility to inform the victims under the CVRA; plaintiff admits that she had been the one to contact and consult with the victims in the 2013 sexual assault case in the past. Even if plaintiff only belatedly learned of Boyd's actions when she returned from her honeymoon, that does not mean that Boyd violated the CVRA by failing to inform plaintiff of new developments in the case, or by failing to ensure that someone else from the prosecutor's office contacted the victims. For similar reasons to those underlying our decision regarding the alleged violation of MCL 771.1(1), we conclude that plaintiff could not have reasonably believed that Boyd violated the CVRA, and the trial court erred by finding a question of material fact on this issue. Walsh, 263 Mich App at 621.
In sum, the trial court erred by denying defendants' motion for summary disposition on plaintiff's WPA claim. Because we determine that the trial court erred by determining that plaintiff was involved in protected activity, we do not consider defendants' arguments concerning the statute of limitations or the County's argument that it was not plaintiff's "employer" under the WPA.
However, we do note that to the extent the trial court based its decision regarding the limitations period on the "continuing wrongs" doctrine, this doctrine has been disavowed in Michigan. See Garg v Macomb Co Community Mental Health Servs, 472 Mich 263, 290; 696 NW2d 646 (2005), amended on other grounds 473 Mich 1205 (2005); Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 280; 769 NW2d 234 (2009).
IV. "PUBLIC POLICY" RETALIATION CLAIM
Defendants also argue that the trial court erred by holding that plaintiff's "public policy" wrongful termination claim was not preempted by the WPA. We agree. Whether plaintiff's public-policy claim was preempted by the WPA presents a question of law that we review de novo. Rapistan Corp v Michaels, 203 Mich App 301, 306; 511 NW2d 918 (1994), citing Cardinal Mooney High Sch v Mich High Sch Athletic Ass'n, 437 Mich 75, 80; 467 NW2d 21 (1991).
At-will employment relationships may generally be terminated at any time, with or without cause, meaning for any reason or no reason. Suchodolski v Mich Consolidated Gas Co, 412 Mich 692, 694-695; 316 NW2d 710 (1982). "However, an exception has been recognized to that rule, based on the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable." Id. at 695. Our Supreme Court has stated that such public-policy grounds include adverse action in response to an employee's "refusal to violate a law in the course of employment," or in response to the employee's "exercise of a right conferred by a well-established legislative enactment." Id. at 695-696. However, "where a statute confers upon a victim of retaliation the right to sue, that person may not also assert a claim of discharge in violation of public policy under Suchodolski." Vagts v Perry Drug Stores, Inc, 204 Mich App 481, 485; 516 NW2d 102 (1994), citing Dudewicz v Norris-Schmid Inc, 443 Mich 68, 78-80; 503 NW2d 645 (1993). The WPA is "the exclusive remedy for an employee whose employment is terminated in retaliation for reporting an employer's violation of the law." Shuttleworth v Riverside Osteopathic Hosp, 191 Mich App 25, 27; 477 NW2d 453 (1991).
Although plaintiff argues that she was asked to violate the law when Boyd asked her to agree with his proposed plea agreement and not file a motion to set it aside, it is clear that the gravamen of her complaint was that she was retaliated against for reporting Boyd's conduct to McGolgan. The WPA is the exclusive remedy for such claims, and the trial court erred by holding otherwise. Shuttleworth, 191 Mich App at 27; see also Wurtz v Beecher Metro Dist, 495 Mich 242, 248; 848 NW2d 121 (2014).
V. CONCLUSION
In Docket No. 346542, we reverse the portion of the trial court's order denying summary disposition of plaintiff's intentional tort and vicarious liability claims against Boyd and the County. In Docket No. 346565, we reverse the portion of the trial court's order denying summary disposition of plaintiff's WPA and public-policy claims against Boyd, McColgan, and the County. We remand for entry of an order granting summary disposition in favor of defendants consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction.
/s/ Karen M. Fort Hood
/s/ Jane M. Beckering
/s/ Mark T. Boonstra