Opinion
353462
09-16-2021
UNIVERSITY PEDIATRICIANS, Plaintiff-Appellant, v. M. ROY WILSON and DAVID HEFNER, individually and in their official capacities, and BOARD OF GOVERNORS OF WAYNE STATE UNIVERSITY, Defendants-Appellees.
UNPUBLISHED
Court of Claims LC No. 19-000143-MK.
Before: Rick, P.J., and Ronayne Krause and Letica, JJ.
PER CURIAM.
Plaintiff filed suit in the Court of Claims, alleging breach of contract, unjust enrichment, a variety of tort claims, claims under 42 USC 1983, and violations of the Freedom of Information Act (FOIA), MCL 15.231 et seq. Briefly stated, the parties' dispute relates to the distribution of funds under the Medicaid program, 42 USC 1396 et seq. Plaintiff sought more than $60 million in damages as well as an accounting and the imposition of a constructive trust. The trial court granted summary disposition to defendants under MCR 2.116(C)(7), (8), and (10). Plaintiff appeals as of right, challenging the trial court's grant of summary disposition, the denial of plaintiff's motion to amend, and a discovery ruling. We affirm.
I. BASIC FACTS
Wayne State University (WSU) is a public state university with a medical school, Wayne State University School of Medicine. WSU does not have its own hospital, but instead conducts clinical education programs at various hospitals and facilities in Detroit, including Children's Hospital of Michigan. Wayne State University Physician Group (WSUPG) is a nonprofit corporation affiliated with WSU as a "faculty practice" group. Defendant M. Roy Wilson, M.D., is WSU's president and a member of the Fund for Medical Research and Education (FMRE) board, which "holds a fund affiliated with" WSU, including funds used to support WSU's medical school and clinical practice groups. Defendant David Hefner was WSU's vice president of health affairs as well as vice president of FMRE.
Plaintiff is a nonprofit corporation made up of physicians and other medical professionals who provide pediatric care at Children's Hospital of Michigan in Detroit. In December 2014, plaintiff entered into an "Affiliation Agreement" with WSUPG to become an "affiliated unit" or an "affiliated group" within WSUPG. Among other matters, the Affiliation Agreement contains provisions related to the appointment of plaintiff's members as WSU faculty, and it addresses various financial issues, including compensation, financial responsibility, insurance, and most notably, matters related to Medicaid.
In the present case, the dispute between the parties involves Medicaid funding, specifically distribution of monies known as the Michigan Enhanced Payment Program (MEPP) funds. In 2007, Michigan created the "Physician Adjuster Program," which provided for supplemental payments to healthcare providers with the goal of increasing the number of providers offering services to indigent patients. The funding for the supplemental payments included Fee for Service (FFS) funds and Specialty Network Access Fees (SNAF) funds, collectively referred to as MEPP funding or the Medicaid Public Entity Physician Payment Adjustment Program (PEPPAP). To be eligible for MEPP payments, providers must be affiliated with a state-approved "public entity." WSU is one of several such public entities in Michigan. In particular, the Michigan Medicaid State Plan, Attachment 4.19-B, provides that specific public entities, including WSU, may make "payment adjustments" for "practitioner services provided through" the public entity. These adjustments apply to both public and private practitioners and practice groups, provided that the practitioners or groups are employed by the public entity or under contract with the public entity.
WSUPG serves as WSU's agent for purposes of receiving and managing MEPP funds. To trigger the release of Medicaid funding to WSU, WSU made what are known as intergovernmental transfers (IGTs) to the state. After WSU paid this local match to the state, the MEPP funds were then paid by the state and Medicaid Health Plans into accounts held by WSUPG (on behalf of WSU) for distribution.
Medicaid is a "cooperative federal-state program in which the federal government reimburses states for a portion of the cost of medical care for needy persons." Ronney v Dep't of Social Servs, 210 Mich.App. 312, 315; 532 N.W.2d 910 (1995). The state bears responsibility for the remaining portion of medical costs. One method by which a state may fund its share of Medicaid costs is through IGTs. An IGT "is a mechanism by which states use local, rather than state, dollars to fund the state share of Medicare expenditures. Such transfers-which typically require that public entities at the city or county level transfer funds to the state-are specifically sanctioned by the Medicare Act . . . ." Alaska Dep't of Health & Social Servs v Ctrs for Medicare & Medicaid Servs, 424 F.3d 931, 936 (CA 9, 2005).
Significant to the issues on appeal, there are three documents in the record relevant to WSUPG's management of MEPP funds on behalf of WSU and, in particular, with regard to WSUPG's handling of MEPP funds with respect to plaintiff. First, there is a "Funds Transfer Agreement" between WSU and WSUPG, which was signed in 2012 and amended in 2017. The Funds Transfer Agreement, and the 2017 amendment, authorize WSUPG to serve as WSU's agents with regard to certain governmental funds, including the MEPP funds.
The second document relevant to MEPP funds, which more specifically relates to plaintiff, is the 2014 Affiliation Agreement between plaintiff and WSUPG. Relevant to MEPP funds, the Affiliation Agreement states:
5. Medicaid Payment Adjustment Programs. Affiliated Group acknowledges that WSUPG is Wayne State University's agent for purposes of receiving and managing distribution of certain funding to physician providers that has been authorized by the State of Michigan to support increased physician access for Medicaid beneficiaries in the State of Michigan. This funding is comprised of payment adjustments for services payable under the Medicaid Fee-For-Service ("FFS Program") and Medicaid managed care Specialty Network Access Fee ("SNAF Program") programs (together, the "Programs"). To qualify to receive these payment adjustments, Affiliated Group Physicians agree to, and Affiliated Group shall ensure that Affiliated Group Physicians provide Medicaid Fee-For-Service and Medicaid HMO enrollees access to their services, shall agree to accept new Medicaid Fee-For-Service and Medicaid HMO enrollees up to the Affiliated Group's patient capacity (subject to annual verification by WSUPG), and comply with all requirements necessary to receive payment adjustments under the Programs.
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c. Payments.
(i ) FFS Program Payments. The parties agree that FFS Program payments are calculated and paid by the Michigan Department of Community Health on a per claim basis.
(ii) SNAF Program Payments. WSUPG has directly contracted with the Michigan Medicaid HMO plans to receive the payment adjustments associated with those plans under the SNAF Program. The parties hereby agree that SNAF Program payments will be paid according to the formula described in this Section and on Exhibit A.
d. Institutional Adjustments. Institutional adjustments are those quarterly adjustments that reduce funding under the Programs as determined by the State of Michigan, Medicaid Health Plans, or Wayne State University prior to distribution.
e. SNAF Payment Formula. The parties agree that Program payments will be made to Affiliated Group on a quarterly basis and shall be calculated as a certain percentage of the quarterly SNAF distribution. The percentages will be equal to the percentage calculated by the State of Michigan Department of Community Health ("MDCH") based on four (4) quarters of their HMO claims data. This percentage will be multiplied by the total distribution for all participants to determine Affiliated Group's respective distributable amount before other
adjustments as delineated in Exhibit A. The SNAF payment attributed to the Children's Special Health Care Services (CSHCS) will be distributed based on data supplied by MDCH and paid with the base SNAF payment.
f . WSUPG Administration Fee. Affiliated Group recognizes that WSUPG incurs costs associated with administration of the Programs, including, but not necessarily limited to, WSUPG overhead for staff, attorney fees and consultant fees (the "Administration Fee"). The Administration Fee is allocated among each of the WSUPG Departments and those external groups participating in these Programs. As its share of these costs, Affiliated Group will pay the amounts indicated on Exhibit A.
As set forth in Exhibit A and a later addendum to the Affiliation Agreement, the contract specified WSUPG's administration fee as well as payment of a monthly "dean's tax" to the FMRE.
The third document related to plaintiffs receipt of MEPP funds is the "Public Entity Physician Payment Adjustment Program & Specialty Network Access Fee Program Related Party Questionnaire & Program Enrollment Application," (enrollment application) which WSUPG and plaintiff submitted to the Michigan Department of Community Health. The enrollment application was signed in December 2014 by Kenneth Lee, WSUPG's executive director, and Steven Lipshultz, plaintiffs president. The document identifies WSU as the "public entity" and plaintiff as the "provider." The document contains the following questions:
2.Does the Provider Entity stated herein contract with the Public Entity for professional services?
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3. Does the contract between the Public Entity and Provider Entity stated herein result in a tangible benefit to both parties?
Both of these questions are answered "Yes." The parties also provided a summary of the tangible benefits to both parties under their contract.
The enrollment application was apparently approved by the state, and plaintiff did in fact receive MEPP funds as a provider affiliated with WSU. Central to the parties' dispute related to the MEPP funds are "institutional adjustments" made by WSU in the course of its distribution of the MEPP funds. As noted, the Affiliation Agreement between plaintiff and WSUPG provided for "institutional adjustments" to Medicaid funding by WSU. According to an affidavit submitted by Hefner, WSU has in fact been making institutional adjustments each quarter, before distribution of any MEPP funds. Approximately two dozen groups received MEPP funds through WSU. All of these groups, including plaintiff, were subject to quarterly institutional adjustments. John Horvat, the former vice president of budget and decision support for WSUPG, also confirmed that WSU made quarterly institutional adjustments before distribution of MEPP funds. There is, in short, no dispute that WSU made the institutional adjustments.
Plaintiff, however, challenged the propriety of these adjustments. Simply stated, plaintiffs basic assertion is that WSU wrongfully made these institutional adjustments before distributing funds. Instead, WSU should have served as a mere "pass-through" entity that distributed all MEPP funds to affiliated providers, including plaintiff. According to an accountant retained by plaintiff, the institutional adjustments with respect to plaintiff total $54, 686, 998. With the addition of interest, plaintiff maintains that WSU owes at least $60, 497, 849.
In September 2019, plaintiff filed the current lawsuit in the Court of Claims, alleging (1) breach of contract by WSU (specifically asserting that the enrollment application constituted a contract that was breached by WSU); (2) breach of fiduciary duty by WSU; (3) fraud by Wilson and Hefner; (4) silent fraud by Wilson and Hefner; (5) accounting; (6) conversion; (7) unjust enrichment; (8) constructive trust; (9) a violation of FOIA; (10) a procedural due-process claim under § 1983; and (11) a substantive due-process claim under § 1983.
Although some claims are labeled as specifically involving WSU or the individual defendants, other claims do not specifically identify the defendant or defendants involved, making it somewhat unclear which claims apply to which defendants.
Defendants filed several motions for summary disposition, which the trial court granted under MCR 2.116(C)(7), (8), and (10). The trial court also denied plaintiffs motion to amend its complaint as futile, and the trial court denied defendants' motion for a protective order as moot. Plaintiff now appeals as of right, challenging the grant of summary disposition, the trial court's denial of its motion to amend, and the trial court's discovery ruling.
II. FAILURE TO STATE A CLAIM
On appeal, plaintiff first argues that the trial court erred by dismissing its claims for breach of contract and unjust enrichment when plaintiff set forth facts showing that WSU breached the enrollment application by making institutional adjustments that were not authorized by the enrollment application or Medicaid. According to plaintiff, these same facts support a claim for unjust enrichment. We disagree.
We review de novo a trial court's decision on a motion for summary disposition. Mendelson Orthopedics PC v Everest Nat'l Ins Co, 328 Mich.App. 450, 456; 938 N.W.2d 739 (2019).
A motion under MCR 2.116(C)(8) tests whether the opposing party has failed to state a claim on which relief can be granted. When deciding a motion under (C)(8), this Court accepts all well-pleaded factual allegations as true and construes them in the light most favorable to the nonmoving party. A trial court may grant summary disposition under MCR 2.116(C)(8) only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. [Id. at 457 (quotation marks and citations omitted).]
When reviewing a motion under MCR 2.116(C)(8), a contract attached to the complaint is considered part of the pleadings. Laurel Woods Apartments v Roumayah, 274 Mich.App. 631, 635; 734 N.W.2d 217 (2007). Questions involving the interpretation of a contract or a statute are reviewed de novo. Mendelson Orthopedics, 328 Mich.App. at 457.
A. BREACH OF CONTRACT
"A party claiming a breach of contract must establish (1) that there was a contract, (2) that the other party breached the contract and, (3) that the party asserting breach of contract suffered damages as a result of the breach." Dunn v Bennett, 303 Mich.App. 767, 774; 846 N.W.2d 75 (2013) (quotation marks and citation omitted). "The rights and duties of parties to a contract are derived from the terms of the agreement." Wilkie v Auto-Owners Ins Co, 469 Mich. 41, 62; 664 N.W.2d 776 (2003). That is, courts will enforce "only those obligations actually assented to by the parties," and a party cannot be bound to "an obligation not covered by the contract as written." Id. at 63 (quotation marks and citation omitted).
In this case, assuming, as did the trial court, that the enrollment application constitutes a contract, it is clear that plaintiff failed to state a claim for breach of contract because plaintiff has not identified a contractual provision requiring WSU to pay all MEPP funds to plaintiff. In its complaint, plaintiff set forth its breach-of-contract claim as follows:
98. Consistent with the terms of the Application, WSU and [plaintiff] entered into an express and/or implied agreement that WSU would serve as the public entity on behalf of [plaintiff] to obtain MEPP funds from the State based on services provided by [plaintiff].
99. The authorization to WSU sets forth in the application did not allow WSU to keep, for itself, any of the MEPP funds paid by the State for services provided by [plaintiff].
100. WSU breached the agreement by failing to pay [plaintiff] all of the MEPP funds it received from the State for services provided by [plaintiff].
101.As a direct and proximate cause of WSU's breach, [plaintiff] has been damaged in an amount not less than $60 million, which amount includes interest, but does not include WSU's attorneys' fees and costs to which it is entitled.
However, missing from the complaint, and indeed missing from the enrollment application, is any provision stating that WSU would pay "all of the MEPP funds it received from the State for services provided by [plaintiff]." At most, in response to a question asking the applicants to "summarize" the tangible contract benefits to each party, the enrollment application stated:
The provider entity receives an opportunity for its physicians to participate in all WSUPG contracted managed care plans, plus an opportunity to reduce its overhead costs by participating in WSUPG's programs (e.g., billing, credentialing, etc.), WSU faculty appointments for participating provider entity physicians, and an opportunity to earn enhanced payments. The public entity receives increased numbers of physicians for purposes of advancing WSUPG's mission to increase the community's access to quality health care services, teaching services from provider entity physicians in furtherance of WSUPG's commitment to providing medical
education, an administrative fee to help offset WSUPG's administrative costs, and amounts used to help fund WSU's "Fund for Medical Research and Education". Both provider entity and public entity gain the ability to develop integrated programs for clinical services.
This rather vague "summary" does not contain language requiring WSU to remit all funds to plaintiff. It does not guarantee that plaintiff would receive all MEPP funds or otherwise specify how plaintiffs payments would be calculated. At most, it notes that plaintiff would have the opportunity to earn "enhanced payments" of unspecified amounts. Further, it is clear that WSUPG would receive administrative fees and that other amounts would be used to fund the FMRE. In short, contrary to plaintiff s contentions, nothing in this paragraph-or elsewhere in the enrollment application-guarantees that plaintiff would receive all of the MEPP funds. Moreover, given that this paragraph only purports to "summarize . . . contract language" it is clear that the benefits to the parties involved were set forth more fully elsewhere, and if other sources-such as the Affiliation Agreement-are considered, it is even more apparent that the benefits to plaintiff did not include receipt of all MEPP funds. Rather, as stated in the Affiliation Agreement, plaintiff understood and agreed that WSU could make "institutional adjustments." On its own, or considered in conjunction with other documents appended to plaintiffs complaint, the enrollment agreement did not require WSU to pay all of the MEPP funds to plaintiff, and absent such a provision, WSU was not contractually bound to do so. See Wilkie, 469 Mich. at 62.
In contrast to this conclusion, plaintiff does not identify an actual provision in the enrollment application that requires payment of all funds to plaintiff. Instead, plaintiff attempts to cobble such an obligation together from policy arguments related to the intended purpose of the MEPP funds, vague references to federal regulations and the state Medicaid plan, and arguments that failing to read such an obligation into the enrollment application will somehow render portions of the Affiliation Agreement nugatory. While arguing that the enrollment application and Affiliation Agreement must be read in harmony, plaintiff also somewhat inconsistently asserts that WSU cannot rely on the Affiliation Agreement because WSU is not a party to the Affiliation Agreement. Regardless, despite references to numerous other sources outside the enrollment application, plaintiff still fails to identify any contractual provision that requires WSU to remit all MEPP funds to plaintiff. Absent such a contractual provision, WSU did not breach the enrollment application as alleged in plaintiffs complaint, and the trial court did not err by granting summary disposition to WSU on plaintiffs breach-of-contract claim under MCR 2.116(C)(8).
With regard to plaintiff's rather conclusory arguments related to Medicaid law, given the complexity of the Medicaid system, plaintiff's pleadings and briefing fall far short of establishing WSU violated any law governing Medicaid. Quite simply, contrary to plaintiff's perfunctory assertions, nothing in Michigan's state plan characterizes public entities, such as WSU, as "pass-through" entities.
B. UNJUST ENRICHMENT
To establish a claim of unjust enrichment, a plaintiff must show: "(1) the receipt of a benefit by the other party from the complaining party and (2) an inequity resulting to the complaining party because of the retention of the benefit by the other party." Karaus v Bank of New York Mellon, 300 Mich.App. 9, 22-23; 831 N.W.2d 897 (2012). But "not all enrichment is necessarily unjust in nature." Morris Pumps v Centerline Piping, Inc, 273 Mich.App. 187, 196; 729 N.W.2d 898 (2006). As explained by this Court:
[A] third party is not unjustly enriched when it receives a benefit from a contract between two other parties, where the party benefited has not requested the benefit or misled the other parties. . . . Otherwise stated, the mere fact that a third person benefits from a contract between two other persons does not make such third person liable in quasi-contract, unjust enrichment, or restitution. Moreover, where a third person benefits from a contract entered into between two other persons, in the absence of some misleading act by the third person, the mere failure of performance by one of the contracting parties does not give rise to a right of restitution against the third person. [Id. (quotation marks and citation omitted)]
In this case, plaintiff failed to set forth factual allegations to establish that WSU's institutional adjustments were unjust. Undisputedly, plaintiff entered into the Affiliation Agreement with WSUPG and the Affiliation Agreement provided for plaintiffs receipt of MEPP funds subject to institutional adjustments by WSU and others. WSU's receipt of a benefit from the contract, as contemplated by the contracting parties, was not unjust. See Landstar Express Am, Inc v Nexteer Auto Corp, 319 Mich.App. 192, 205-206; 900 N.W.2d 650 (2017). Indeed, given that plaintiff contracted for payment of MEPP funds subject to institutional adjustments, plaintiff also received exactly that for which it bargained and there is no inequity in WSU's retention of a benefit. Overall, nothing in these facts alleged by plaintiff supports a claim of unjust enrichment against WSU. Accordingly, the trial court did not err by granting summary disposition to defendants under MCR 2.116(C)(8).
III. TORT CLAIMS-GOVERNMENTAL IMMUNITY
Plaintiff argues that the trial court erred by dismissing its tort claims on governmental immunity grounds because (1) WSU was engaged in a propriety function, (2) WSU's actions were ultra vires and, therefore, not a governmental function, (3) Wilson was not absolutely immune as the highest executive official, and (4) neither Wilson nor Hefner could show good faith and they were, therefore, not immune from intentional claims. We disagree.
Given our conclusion that the trial court properly dismissed plaintiff's tort claims on the basis of governmental immunity, we find it unnecessary to address defendants' alternate grounds to affirm on the basis that plaintiff failed to state tort claims on which relief could be granted.
This Court reviews de novo a trial court's grant of summary disposition as well as the applicability of governmental immunity and the statutory exceptions to immunity . . . . Summary disposition under MCR 2.116(C)(7) is appropriate if a claim is barred because of immunity granted by law. The contents of the complaint must be accepted as true unless contradicted by the documentary evidence. Any documentary evidence is viewed in the light most favorable to the nonmoving party. A factual dispute about whether a plaintiffs claim is barred precludes summary disposition. If there is no factual dispute, a trial court must determine whether
summary disposition is appropriate under MCR 2.116(C)(7) as a matter of law. [Pike v Northern Mich. Univ, 327 Mich.App. 683, 690-691; 935 N.W.2d 86 (2019) (quotation marks and citations omitted).]
A. WSU BOARD OF GOVERNORS
Under the Governmental Tort Liability Act (GTLA), MCL 691.1401 et seq., subject to certain narrowly construed exceptions, "a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function." MCL 691.1407(1). See also Nawrocki v Macomb Co Rd Comm 'n, 463 Mich. 143, 158; 615 N.W.2d 702 (2000). As a public university, WSU and its board of governors constitute a governmental agency. See MCL 691.1401(a) and (g). As defined by statute, a "governmental function" means "an activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law." MCL 691.1401(b). "[T]his definition is to be broadly applied and requires only that there be some constitutional, statutory or other legal basis for the activity in which the governmental agency was engaged." Ward v Mich. State Univ (On Remand), 287 Mich.App. 76, 84; 782 N.W.2d 514 (2010) (quotation marks and citation omitted).
Governmental immunity is "a characteristic of government," and a party suing the government must "plead in avoidance of governmental immunity." Mack v Detroit, 467 Mich. 186, 203; 649 N.W.2d 47 (2002). "A plaintiff pleads in avoidance of governmental immunity by stating a claim that fits within a statutory exception or by pleading facts that demonstrate that the alleged tort occurred during the exercise or discharge of a nongovernmental or proprietary function." Id. at 204.
In this case, plaintiff contends that WSU is not entitled to immunity because making institutional adjustments to MEPP funds on the basis of contractual agreements-particularly when, according to plaintiff, the adjustments are a violation of the agreements-is a wrongful and ultra vires act. Additionally, plaintiff asserts that WSU's activities fall within the proprietary function exception to governmental immunity. Both of these arguments lack merit.
First, in acting as a public entity for purposes of the MEPP program as authorized by Michigan's state Medicaid plan, WSU was engaged in the exercise or discharge of a governmental function, and its actions were not ultra vires. In general, matters of public health are governmental concerns. Coleman v Kootsillas, 456 Mich. 615, 620; 575 N.W.2d 527 (1998). See also Const 1963, art 4, § 51 ("The public health and general welfare of the people of the state are hereby declared to be matters of primary public concern. The legislature shall pass suitable laws for the protection and promotion of the public health."). Medicaid in particular is a government program, jointly funded and administered by federal and state governments. Hegadorn v Dep 't of Human Servs Dir, 503 Mich. 231, 245; 931 N.W.2d 571 (2019). Subject to broad federal rules, "each State decides eligible groups, types and range of services, payment levels for services, and administrative and operating procedures." 42 CFR 430.0. To obtain federal funding, states are required to submit a state plan for federal approval. See 42 USC 1396-1 . See also 42 USC 1396a (detailing required plan contents). A state's plan "shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them[.]" 42 USC 1396a(a)(1). The state plan must be enforced and administered, in conformance with federal law, according to the rules and regulations established by the state. See 42 CFR 430.10; 42 CFR 431.10(b); 42 CFR 435.903.
Michigan has elected to participate in Medicaid, and its Medicaid program is administered by the Department of Health and Human Services (DHHS). MCL 400.105. See also MCL 330.3101. By statute, the DHHS's administration of Michigan's Medicaid program, to implement and enforce state and federal law, must be in conformance with the Michigan state Medicaid plan. See MCL 400.111a(1)(c). Notably, Michigan's state plan expressly authorizes WSU, and other named institutions, to serve as a "public entity" that may make "payment adjustments" for "practitioner services provided through" the public entity. The state plan also indicates that providers seeking an opportunity to obtain MEPP funds must be affiliated with a public entity, either as an employee or by contract.
Plaintiff suggests that because it had a contract for the receipt of MEPP funds, WSU cannot have been engaged in a governmental function. In support of this argument, plaintiff relies on Pardon v Finkel, 213 Mich.App. 643, 649; 540 N.W.2d 774 (1995). In Pardon, this Court concluded that a county sheriff's department, which contracted with a private party to provide "crowd control" services, was not engaged in a governmental function, but was instead providing services pursuant to a "private agreement." Id. Plaintiff's argument lacks merit. The existence of a contract does not necessarily negate the exercise of a governmental function. To the contrary, in cases such as the current case, discharging a governmental function can involve entering into a contract. See, e.g., Genesee Co Drain Comm'r v Genesee Co, 309 Mich.App. 317, 330 n 18; 869 N.W.2d 635 (2015) (concluding that providing health insurance to governmental employees was a governmental function and that the defendants "were engaged in the discharge of a governmental function when they made and administered the group-insurance agreement" with the plaintiffs).
There is, in short, "a complex web of interlocking statutes, as well as regulations and interpretive documents published by state and federal agencies" that govern Medicaid. Hegadorn, 503 Mich. at 245. Within this complex web, Michigan adopted a state Medicaid plan that expressly authorizes WSU to serve as a public entity in the PEPPAP program and to make "payment adjustments" for "practitioner services provided through" the public entity. In discharging this authorized role, WSU was engaged in the exercise or discharge of a governmental function. See MCL 691.1401(b).
Although to a certain extent acknowledging that matters related to the administration of Medicaid and the management of MEPP funds generally constitute government functions, plaintiff asserts that WSU's specific acts are not protected by the GTLA because there is no express authority for institutional adjustments and WSU's taking of institutional adjustments instead constitutes a wrongful scheme, violative of the laws governing Medicaid and the contractual agreements at issue in this case. However, plaintiff's argument fails because, when determining whether an activity constitutes a governmental function, the focus must be on "the general activity involved rather than the specific conduct engaged in when the alleged injury occurred." Ward, 287 Mich.App. at 84. The general activity in this case is WSU's function as a public entity in the MEPP program as authorized under Michigan's state Medicaid plan; the activity is not WSU's specific decisions as part of that activity, such as making institutional adjustments. Cf. Genesee Co Drain Comm'r v Genesee Co, 309 Mich.App. 317, 330-331; 869 N.W.2d 635 (2015) (concluding that the GTLA applied because the "general activity" at issue was the administration of health insurance benefits and not the "specific acts or decisions that occurred as part of the 'general activity, '" including the alleged misuse of health insurance premiums).
Indeed, in asserting that the institutional adjustments constitute an ultra vires act, plaintiff s argument confuses the question whether WSU was authorized to serve as a public entity with regard to MEPP funds with the question whether WSU performed this function in an unauthorized manner. An "ultra vires activity is not activity that a governmental agency performs in an unauthorized manner. Instead, it is activity that the governmental agency lacks legal authority to perform in any manner." Dextrom v Wexford Co, 287 Mich.App. 406, 419; 789 N.W.2d 211 (2010) (quotation marks and citation omitted). In other words, the issue is whether WSU was authorized to serve as a public entity with regard to distributing MEPP funds, not more specifically whether WSU erred in its discharge of this role by making institutional adjustments. Considering the general activity involved and WSU's authority to engage in that general activity, WSU was engaged in the exercise or discharge of a governmental function when acting as a public entity for purposes of the MEPP program under the state plan, and plaintiffs allegations of misdeeds in the discharge of this governmental function do not obviate the protections of the GTLA. Cf Genesee Co Drain Comm 'r, 309 Mich.App. at 330-331.
Second, plaintiff asserts that WSU's service as a public entity falls within the propriety function exception to governmental immunity. Relevant to plaintiffs argument, the exceptions to governmental immunity include the propriety function exception, set forth in MCL 691.1413:
The immunity of the governmental agency shall not apply to actions to recover for bodily injury or property damage arising out of the performance of a proprietary function as defined in this section. Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary profit for the governmental agency, excluding, however, any activity normally supported by taxes or fees. No action shall be brought against the governmental agency for injury or property damage arising out of the operation of proprietary function, except for injury or loss suffered on or after July 1, 1965.
To constitute a proprietary function, an activity "must satisfy two tests: 1) [t]he activity must be conducted primarily for the purpose of producing a pecuniary profit, and 2) [t]he activity cannot normally be supported by taxes or fees." Dextrom, 287 Mich.App. at 421 (quotation marks and citation omitted; alterations in original). An activity that meets both requirements is not a governmental function; "it is the antithesis of a governmental function itself." Harris v Univ of Mich. Bd of Regents, 219 Mich.App. 679, 691; 558 N.W.2d 225 (1996). And although finding that the activity is a governmental function does not necessarily foreclose consideration of the proprietary function exception, "once the governmental function analysis is made and it has been determined that the activity has the indicia of a traditional governmental function, the conclusion is virtually inevitable that the activity in question is not proprietary." Id. at 692.
In this case, the MEPP program, as part of Medicaid, is the type of activity normally funded by federal, state, and, in some cases, local tax dollars, and the primary purpose of Medicaid, and MEPP more specifically, is to provide need-based assistance for medical care. See Hegadorn, 503 Mich. at 245. Indeed, plaintiff does not dispute that all MEPP funds received by WSU were funded by tax dollars or that the purpose of the program was to increase access to medical care for indigent patients. Instead, plaintiff argues that WSU's proprietary function involves the mismanagement of these tax dollars, i.e., the conversion of the MEPP funds for WSU's own profit-making purposes. Once again, however, plaintiff's focus on the activity at issue is too narrow. "[C]ourts look to the general activity involved rather than the specific conduct engaged in when considering the applicability of the proprietary function exception to governmental immunity." Elia Cos, LLC v Univ of Mich. Regents, Mich. App, ; N.W.2d (2021) (Docket No. 351064); slip op at 4 (quotation marks and citation omitted), lv pending. The activity at issue is WSU's role as a public entity in the MEPP program, which is funded primarily, if not exclusively, by tax dollars for the paramount purpose of facilitating need-based medical care. In this role, WSU was engaged in a governmental function, and plaintiff's reliance on the proprietary exception is misplaced.
On appeal, plaintiff also argues that an evidentiary hearing was warranted on the applicability of the proprietary function exception. However, plaintiff fails to explain what facts need further development to enable a determination whether the proprietary function exception applies. See Dextrom, 287 Mich.App. at 432-433. Accordingly, there was no need for an evidentiary hearing on this issue before the trial court granted summary disposition to WSU as a matter of law.
In short, the trial court did not err by concluding that WSU was immune from tort liability under MCL 691.1407(1). This immunity applies to all tort claims against WSU. Nawrocki, 463 Mich. at 156. Accordingly, the trial court did not err by granting summary disposition on plaintiff's tort claims against WSU on governmental immunity grounds.
B. INDIVIDUAL DEFENDANTS
With regard to Wilson and Hefner, plaintiff's complaint includes intentional tort claims of fraud and conversion. See Genesee Co Drain Comm'r, 309 Mich.App. at 320 (noting fraud and conversion constitute intentional torts). Under the GTLA, individual governmental actors may be entitled to immunity, including immunity from intentional torts, provided that they raise and prove entitlement to immunity as an affirmative defense. Odom v Wayne Co, 482 Mich. 459, 479; 760 N.W.2d 217 (2008). The immunity available to individuals differs depending on the individual's governmental position. See id.
1. ABSOLUTE IMMUNITY
For high-ranking executive officials, the immunity available is set forth in MCL 691.1407(5), which states: "[a] judge, a legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority." In this context, "executive authority" "means all authority vested in the highest executive official by virtue of his or her position in the executive branch," not just "high-level duties exclusive to his or her position." Petipren v Jaskowski, 494 Mich. 190, 208-209; 833 N.W.2d 247 (2013) (emphasis added). There are several factors relevant to a determination whether an act falls within the scope of an executive's authority, including "the nature of the specific acts alleged, the position held by the official alleged to have performed the acts, the charter, ordinances, or other local law defining the official's authority, and the structure and allocation of powers in the particular level of government." Id. at 205-206 (quotation marks and citation omitted).
Public universities in Michigan, including WSU, have a unique constitutional status under Const 1963, art 8, § 5, which, in part, provides:
[T]he governors of Wayne State University and their successors in office shall constitute a body corporate known as the Board of Governors of Wayne State University. Each board shall have general supervision of its institution and the control and direction of all expenditures from the institution's funds. Each board shall, as often as necessary, elect a president of the institution under its supervision. He shall be the principal executive officer of the institution, be ex-officio a member of the board without the right to vote and preside at meetings of the board. The board of each institution shall consist of eight members who shall hold office for terms of eight years and who shall be elected as provided by law. The governor shall fill board vacancies by appointment. Each appointee shall hold office until a successor has been nominated and elected as provided by law.
The Michigan Supreme Court has described "the governing boards' status as the highest form of juristic person known to the law, a constitutional corporation of independent authority, which, within the scope of its functions, is co-ordinate with and equal to that of the legislature." Federated Publications, Inc v Bd of Trustees of Mich. State Univ, 460 Mich. 75, 84 & n 8; 594 N.W.2d 491 (1999) (quotation marks and citation omitted). As an elected governing body with authority to make decisions having wide effect on the community, the WSU board-like a school district board and other governing bodies of political subdivisions-is a level of government. See Nalepa v Plymouth-Canton Community Sch Dist, 207 Mich.App. 580, 587; 525 N.W.2d 897 (1994), aff d on result only by 450 Mich. 934 (1995). And, under Const 1963, art 8, § 5, Wilson is the highest elected official of this level of government.
Moreover, it appears undisputed that, in general, Wilson, as WSU's president, had the authority to participate in, or oversee, WSU's role in the MEPP program as a public entity. Although plaintiff contends that Wilson exceeded the bounds of this authority by making institutional adjustments to MEPP funds, as recognized by the trial court and previously discussed, the Affiliation Agreement allowed WSU to make institutional adjustments. Cf Bennett v Detroit Police Chief 274 Mich.App. 307, 313-314; 732 N.W.2d 164 (2007) (considering collective-bargaining agreement among sources of official's executive authority for purposes of absolute immunity). Therefore, the trial court did not err by concluding that Wilson was acting within the scope of his executive authority, such that he was entitled to absolute immunity under MCL 691.1407(5). Accordingly, the trial court properly granted summary disposition to Wilson.
2. LOWER-LEVEL EMPLOYEES
Under the GTLA, lower-level governmental employees may be immune from liability for intentional torts, provided that they satisfy the test set forth in Ross See Odom, 482 Mich. at 471- 473. See also MCL 691.1407(3). Under this test, an individual is entitled to immunity from an intentional tort suit, if he or she shows that:
Ross v Consumers Power Co, 420 Mich. 567; 363 N.W.2d 641 (1984).
(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. [Odom, 482 Mich. at 480.]
With regard to the first prong of the test, Hefner undertook acts related to the MEPP funds while in the course of employment, and while acting, or reasonably believing that he was acting, in the scope of his authority. See id. Indeed, given that the Affiliation Agreement acknowledges that WSU may make institutional adjustments, Hefner, at the very least, had a reasonable belief that his actions were within the scope of his authority. See id. at 473 (recognizing that immunity still applies to an employee "who reasonably believes that he was authorized to take certain actions, but later learns that he was mistaken.").
Under the second prong, "a governmental employee does not act in good faith if the employee acts maliciously or with a wanton or reckless disregard of the rights of another." Radu v Herndon & Herndon Investigations, Inc, 302 Mich.App. 363, 386; 838 N.W.2d 720 (2013) (quotation marks and citation omitted). "[W]illful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does." Id. (quotation marks and citation omitted). Here, there is no evidence that Hefner acted with malice, and instead, the evidence shows that he acted in good faith when making institutional adjustments as contemplated by the Affiliation Agreement.
But plaintiff contends that Hefner made the institutional adjustments as part of a scheme to harm plaintiff and undermine its existence in order to replace it with another entity, called Wayne Pediatrics. In making this argument regarding Hefner's purportedly malicious motives, plaintiff discusses events occurring in 2017 to 2019 regarding the breakdown of the relationship between plaintiff and WSU. This wholly ignores the undisputed evidence that institutional adjustments had been made every year since at least 2012, which was before WSU employed Hefner. Further, although plaintiff contends that there was some sort of scheme to topple plaintiff in particular, this argument also ignores that there were approximately two dozen practice groups affiliated with WSU that were all subject to institutional adjustments. Nothing in these facts in any way supports plaintiffs assertions that it was targeted for institutional adjustments as part of a malicious plan. Instead, in making institutional adjustments to MEPP funds, as contemplated by plaintiffs Affiliation Agreement, Hefner acted in good faith.
Finally, there is no question that the challenged act-the taking of institutional adjustments as part of the administration of the MEPP funds-constituted a discretionary act. Although contemplated by the Affiliation Agreement, the agreement did not set a specific amount, but instead left WSU with the discretion to determine the quarterly adjustments. Making institutional adjustments, therefore, required deliberation, decision, and judgment; the hallmarks of a discretionary, rather than ministerial, action. See Odom, 482 Mich. at 475. Accordingly, Hefner was entitled to immunity from plaintiffs intentional tort claims. And the trial court did not err by granting summary disposition to Hefner on this basis.
If Wilson was not entitled to absolute immunity, the same analysis would establish that he was entitled to immunity as a lower-level employee.
IV. § 1983
Plaintiff also argues that the trial court erred by granting summary disposition on its § 1983 claim when, according to plaintiff, it is entitled to seek injunctive relief from all defendants and neither Hefner nor Wilson are entitled to qualified immunity. We disagree.
Constitutional questions, and whether an individual is entitled to qualified immunity under federal law, present questions of law, which this Court reviews de novo. Lavigne v Forshee, 307 Mich.App. 530, 536; 861 N.W.2d 635 (2014); By Lo Oil Co v Dep 't of Treasury, 267 Mich.App. 19, 25; 703 N.W.2d 822 (2005).
Section 1983 "provides a remedy for the violation of rights guaranteed by the federal constitution or federal statutes." Lavigne, 307 Mich.App. at 537 (quotation marks and citation omitted). The statute states:
In the context of its § 1983 argument, plaintiff makes a passing reference to rights guaranteed under Michigan's Constitution. However, "[§] 1983 does not provide a remedy for a violation of the Michigan Constitution; rather, there must be an underlying violation of the federal constitution or federal law." Mettler Walloon, LLC v Melrose Twp, 281 Mich.App. 184, 196; 761 N.W.2d 293 (2008). Plaintiff's discussion of Michigan's Constitution is out of place in the context of its argument relating to § 1983. And, to the extent that plaintiff mentions Michigan's Constitution as an alternate source of constitutional tort damages, this perfunctory, one-sentence assertion is insufficient to brief this state-constitutional tort question, and we consider the issue to be abandoned. See FMB-First Mich. Bank v Bailey, 232 Mich.App. 711, 717; 591 N.W.2d 676 (1998) ("We deem that this issue is abandoned because it is not adequately briefed.").
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . [42 USC 1983.]
A. WSU AND THE INDIVIDUAL DEFENDANTS IN THEIR OFFICIAL CAPACITIES
For purposes of § 1983, "a State is not a 'person' against whom a § 1983 claim for money damages might be asserted." Lapides v Bd of Regents of Univ Sys of Georgia, 535 U.S. 613, 617; 122 S.Ct. 1640; 152 L.Ed.2d 806 (2002). This rule also extends to "governmental entities that are considered arms of the State." Will v Mich. Dep 't of State Police, 491 U.S. 58, 70; 109 S.Ct. 2304; 105 L.Ed.2d 45 (1989) (quotation marks and citation omitted). Likewise, state officials sued in their official capacity are also not subj ect to suit under § 1983 "because a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office," and "[a]s such, it is no different from a suit against the State itself." Id. at 71.
As applied in this case, WSU-as a state university-is an arm of the state, thus, WSU and its board of governors are not persons against whom plaintiff may bring a § 1983 claim for money damages. See Stotter v Univ of Texas at San Antonio, 508 F.3d 812, 821 (CA 5, 2007) ("[S]tate universities as arms of the state are not 'persons' under § 1983."). Accordingly, plaintiffs § 1983 claim against the WSU board of governors was properly dismissed to the extent that plaintiff sought money damages. See Barnes v Bd of Trustees of Univ of Illinois, 946 F.3d 384, 391 (CA 7, 2020); Gaby v Bd of Trustees of Community Tech Colleges, 348 F.3d 62, 63 (CA 2, 2003). With regard to the individual defendants-Wilson and Hefner-plaintiff s complaint sued them in both their official and individual capacities. In their official capacities, Wilson and Hefner also could not be sued for money damages under § 1983, and to the extent that plaintiff sought money damages from Wilson and Hefner in their official capacities, plaintiffs claim was properly dismissed. See Will, 491 U.S. at 71.
Although § 1983 does not provide a means of seeking money damages from WSU or Wilson and Hefner in their official capacities, it is possible to maintain a § 1983 suit seeking prospective injunctive relief from a state official. See id. at 71 n 10. With regard to its claims under § 1983, plaintiff sought the following relief:
[Plaintiff] requests this Honorable Court enjoin the Defendants from engaging in any further efforts to deny Medicaid enhanced pass-through funding, and from engaging in any further efforts to destroy Plaintiff's] corporate entity. Plaintiff further seeks compensatory, punitive damages, and costs and attorney fees pursuant to 42 U.S.C. §1983 from the individual Defendants.
* * *
[Plaintiff] respectfully requests that this Honorable Court enjoin the Defendant from engaging in any conduct, direct or indirect, that deprives [plaintiff] of its liberty interest to operate its business free from unlawful interference by the State. In addition, [plaintiff] respectfully requests that this Honorable Court award costs and attorney fees pursuant to 42 U.S.C. § 1988 [sic]. Finally, [plaintiff] seeks compensatory and punitive damages from the Defendants.
Briefly summarized, with regard to its request for prospective equitable relief, plaintiff sought to prevent WSU from making institutional adjustments to MEPP funds payable to plaintiff in the future. But, as recognized by the trial court, plaintiff and WSU are no longer affiliated, meaning that plaintiff no longer receives MEPP funds through an affiliation with WSU and there is no possibility of WSU making future institutional adjustments to MEPP funds before distributing funds to plaintiff. In these circumstances, where there is no risk of future injury to plaintiff, there is no basis for entering an injunction to enjoin WSU from making institutional adjustments. See Street R Co of East Saginaw v Wildman, 58 Mich. 286, 287; 25 N.W. 193 (1885) (recognizing that injunctions are not appropriate "for the enforcement of a right or the prevention of a wrong in the abstract, not connected with any injury or damage to the person seeking relief[.]"). See also Sumpter v Wayne Co, 868 F.3d 473, 491 (CA 6, 2017) (concluding that allegations of past wrongdoing did not provide grounds for injunctive relief absent a concrete and particularized threat of actual and imminent injury). Stated differently, absent a susceptibility to a continuing injury or a showing that it will be wronged again in the future, plaintiffs request for prospective injunctive relief is moot. See Pecha by & through Pecha-Weber v Lake, 700 Fed.Appx. 840, 844-845 (CA 10, 2017) (concluding requests for prospective injunctive relief regarding Medicaid benefits was moot because the claimant had died and was, therefore, not susceptible to continuing or future harm).
To the extent that plaintiff sought to enjoin defendants from engaging in further efforts to "destroy" plaintiff or to interfere with its operation of its business, plaintiff's allegations, taken as a whole, make clear that it was WSU's institutional adjustments to the MEPP funds that were purportedly destroying plaintiff and interfering with its operations. Fairly read, the only injunctive relief actually sought related to the distribution of MEPP funds.
In sum, the trial court properly dismissed plaintiffs § 1983 claims against WSU and the individual defendants in their official capacities because (1) they are not persons against whom a suit for money damages may be maintained and (2) the claim for prospective injunctive relief is moot given that plaintiff no longer receives MEPP funds through an affiliation with WSU.
B. QUALIFIED IMMUNITY
The only remaining § 1983 claims are those seeking money damages from Wilson and Hefner in their individual capacities. To succeed on a claim under § 1983, "[a] plaintiff must demonstrate that the defendants, acting under color of state law, deprived it of a right secured by the constitution or the laws of the United States." Mettler Walloon, LLC v Melrose Twp, 281 Mich.App. 184, 195; 761 N.W.2d 293 (2008). In addition, when a governmental official claims qualified immunity as a defense to a § 1983 claim, a plaintiff also "has the burden of overcoming the assertion of qualified immunity at the pretrial stage." Lavigne, 307 Mich.App. at 542. "To negate a defense of qualified immunity and avoid summary judgment, the plaintiff need not present absolute proof, but must offer more than mere allegations." Ontiveros v City of Rosenberg, 564 F.3d 379, 382 (CA 5, 2009).
Under the doctrine of qualified immunity, "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Morden v Grand Traverse Co, 275 Mich.App. 325, 340; 738 N.W.2d 278 (2007) (quotation marks and citation omitted). Determining whether qualified immunity applies involves two inquiries: (1) whether the facts that a plaintiff has alleged or shown establish a violation of a constitutional right and (2) whether the right at issue was "clearly established" at the time of the defendant's alleged misconduct. Pearson v Callahan, 555 U.S. 223, 232; 129 S.Ct. 808; 172 L.Ed. 2d 565 (2009). These inquiries need not be considered in any particular order; that is, the "clearly established" prong may be addressed first. Id. at 236.
Showing that a right is clearly established "is a high standard." Morden, 275 Mich.App. at 340. "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 341 (quotation marks and citation omitted). "[T]he court should ask whether the agent acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed . . . after the fact." Id. (quotation marks and citation omitted).
In this case, plaintiff has failed to identify a clearly established right. As discussed repeatedly, the circumstances of this case demonstrate that officials at WSU made institutional adjustments to MEPP funds before distributing those funds. Plaintiff contends that these adjustments violated its right as a provider to be paid for its services under the Medicaid program. However, plaintiff fails to point to any provision of law-in the federal statutes or regulations, Michigan statutes, or Michigan state plan-that precludes institutional adjustments by WSU, particularly when plaintiff entered into a contract that expressly provided for institutional adjustments by WSU. Plaintiff cannot show a violation of a clearly established right, and accordingly, the trial court did not err by dismissing plaintiff's § 1983 claims against Hefner and Wilson in their individual capacities.
V. ACCOUNTING CLAIM
Next, plaintiff argues that the trial court erred by dismissing its request for an accounting when an accounting is necessary to determine with precision the exact amount of institutional adjustments made by WSU. We disagree.
"An action for an accounting is equitable in nature, but whether a plaintiff has stated a cause of action for an accounting must be determined from the facts pled in the plaintiff's complaint rather than from the prayer for relief." Boyd v Nelson Credit Ctrs, Inc, 132 Mich.App. 774, 779; 348 N.W.2d 25 (1984). "An accounting is unnecessary [when] discovery is sufficient to determine the amounts at issue." Id. at 779. For example, in an action to recover money owing under a contract, plaintiffs needing any discovery about the amount of money in question can subpoena witnesses and avail themselves of discovery rules, making an accounting unnecessary. See Cyril J Burke, Inc v Eddy & Co, 332 Mich. 300, 303; 51 N.W.2d 238 (1952).
In this case, the main premise of plaintiff's complaint is that, notwithstanding the institutional adjustments provided for in the Affiliation Agreement, WSU lacked authority to make any institutional adjustments to the MEPP funds before distributing those funds. To the extent that there is a question about the amount of the adjustments, how much WSU retained in the form of institutional adjustments could be determined through normal discovery procedures. Indeed, plaintiff has already received ample financial information from WSU allowing its accounting expert to pinpoint the amount of institutional adjustments at a figure upwards of $60 million. Cf. Boyd, 132 Mich.App. at 780 (concluding that claim for an accounting was properly dismissed because, among other reasons, the plaintiffs had submitted affidavits specifying the amount at issue). Given the information already in plaintiff's possession-and the availability of additional discovery mechanisms-its request for an accounting to determine the amount of institutional adjustments was unnecessary and properly dismissed. See Cyril J Burke, Inc, 332 Mich. at 303.
Moreover, as the trial court recognized, plaintiff has not shown a need to determine the amount of institutional adjustments with precision because there is no merit to its argument that WSU lacked authority to make any institutional adjustments. In other words, there is no allegation in the complaint that WSU miscalculated the amount of the institutional adjustments; rather, plaintiffs only contention is that all institutional adjustments were categorically improper. Because this argument lacks merit, and plaintiff has not shown that the institutional adjustments were improper, an accounting to determine the amount of the institutional adjustments was clearly unwarranted. Cf In re Dott Acquisition, LLC, 520 BR 588, 637 (Bankr ED Mich, 2014) (concluding an accounting was unwarranted when the party seeking an accounting had "no claim to ownership of that property"); Union Bank v Superior Court, 31 Cal.App.4th 573, 593-594; 37 Cal.Rptr 2d 653 (1995) (finding an accounting unnecessary when there was no evidence that the defendant engaged in misconduct or owed money to the plaintiff requesting an accounting). The trial court did not err by dismissing plaintiffs claim for an accounting.
On appeal, plaintiff does not address its request for a constructive trust, and in failing to brief the issue, plaintiff has abandoned it. See FMB-First Mich. Bank, 232 Mich.App. at 717. In any event, "[a] constructive trust is an equitable remedy created not by intent or by agreement, but by the operation of law." In re Filibeck Estate, 305 Mich.App. 550, 552; 853 N.W.2d 448 (2014) (emphasis added). For the reasons discussed, all of plaintiff's claims relating to the MEPP funds were properly dismissed, and absent a viable underlying cause of action, plaintiff is not entitled to a constructive trust as a remedy. See Kammer Asphalt Paving Co, Inc v East China Twp Sch, 443 Mich. 176, 188; 504 N.W.2d 635 (1993).
VI. FOIA
Plaintiff also argues that the trial court erred by granting summary disposition on its FOIA claim when plaintiff offered evidence that WSU failed to provide documents when responding to plaintiffs FOIA request. We disagree.
With regard to plaintiffs FOIA claim, the trial court indicated that summary disposition could be granted under MCR 2.116(C)(8). But the trial court also considered the documentary evidence provided by the parties and granted summary disposition under MCR 2.116(C)(10).
A motion under MCR 2.116(C)(10) . . . tests the factual sufficiency of a claim. When considering such a motion, a trial court must consider all evidence submitted by the parties in the light most favorable to the party opposing the motion. A motion under MCR 2.116(C)(10) may only be granted when there is no genuine issue of material fact. A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might differ. [El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 160; 934 N.W.2d 665 (2019) (quotation marks and citations omitted).]
The interpretation and application of FOIA poses a question of law that this Court reviews de novo. Rataj v Romulus, 306 Mich.App. 735, 747; 858 N.W.2d 116 (2014). Mootness is also reviewed de novo. Garrett v Washington, 314 Mich.App. 436, 449; 886 N.W.2d 762 (2016).
Plaintiff submitted a FOIA request to WSU, and WSU responded. Plaintiff contends that WSU's response was woefully inadequate because WSU had previously provided documents during WSUPG's bankruptcy proceedings (documents which are in plaintiff's possession) that WSU did not provide in response to plaintiff's FOIA request. On these facts, the trial court concluded that plaintiff's FOIA claim was moot because the disputed materials had been disclosed.
Initially, we note that the trial court's primary reason for dismissing the FOIA claim was its conclusion that the disclosure of the documents in question rendered the claim moot. Yet, on appeal, plaintiff does not dispute this conclusion and in fact wholly fails to address the trial court's mootness determination. Given plaintiff's failure to dispute the basis of the trial court's ruling, we need not even consider granting relief on appeal. See Derderian v Genesys Health Care Sys, 263 Mich.App. 364, 381; 689 N.W.2d 145 (2004). On this basis alone, we affirm the trial court's dismissal of plaintiff's FOIA claim. See id.
Substantively, the trial court correctly concluded that plaintiff's FOIA claim was moot. Initially, we note that given the allegations in plaintiff's complaint, there is some question about what it claims was not disclosed as plaintiff failed to identify any documents that it sought or to otherwise explain what FOIA request WSU denied. Setting aside plaintiff's deficient pleadings, plaintiff's summary disposition argument-namely, its assertion that it had received documents from WSU during WSUPG's bankruptcy proceedings that were not also provided in response to the FOIA request-clearly establishes that the documents in question were disclosed, rendering plaintiff's FOIA claim for the disclosure of records moot. Herald Co, Inc v Ann Arbor Pub Sch, 224 Mich.App. 266, 270-271; 568 N.W.2d 411 (1997) ("When the disclosure that a suit seeks has already been made, the substance of the controversy disappears and becomes moot.").
With regard to mootness, the fact that a substantive claim under the FOIA has been rendered moot by the disclosure of records is not determinative of a plaintiff's entitlement to fees and costs under the FOIA. Thomas v New Baltimore, 254 Mich.App. 196, 202; 657 N.W.2d 530 (2002). And, in this case, in addition to seeking records, plaintiff's complaint also requested fees and costs under the FOIA. But to receive fees and costs, a plaintiff must prevail in a FOIA action, MCL 15.240(6), meaning that the action was "reasonably necessary to compel the disclosure, and the action had a substantial causative effect on the delivery of the information to the plaintiff," Thomas, 254 Mich.App. at 202 (quotation marks, citations, and emphasis omitted). Again, because the information had previously been provided to plaintiff in the bankruptcy proceedings, plaintiff's FOIA action was not reasonably necessary to compel disclosure and this case did not have a substantial causative effect on the delivery of the information. Therefore, plaintiff was not entitled to fees and costs under the FOIA. See id. And the trial court did not err by dismissing plaintiff's FOIA claim under MCR 2.116(C)(10).
VII. DEFENDANTS' MOTIONS FOR PROTECTIVE ORDERS
In the trial court, defendants moved for protective orders to limit discovery pending resolution of their motions for summary disposition. The trial court denied these motions as moot after granting summary disposition to defendants. On appeal, plaintiff now argues that the trial court should have ruled on the motions at an earlier time and denied the motions. As an initial matter, we note that, to the extent that plaintiff challenges the trial court's decision on defendants' motions for a protective order to restrict discovery, plaintiff's argument is somewhat perplexing because the trial court denied the motions as moot. At no time before dismissing the case did the trial court impose a protective order or otherwise restrict discovery. Plaintiff fails to explain how it was harmed-or what further relief this Court could provide-when the trial court never imposed a protective order and has in fact already denied the motions about which plaintiff now complains. See People v Billings, 283 Mich.App. 538, 548; 770 N.W.2d 893 (2009) ("Because defendant has already received the relief that she requested, this issue is moot.").
Setting aside defendants' motions for a protective order, the more general thrust of plaintiff's argument appears to be that it should have been permitted additional discovery before its claims were dismissed. However, plaintiff fails to identify any disputed fact on which further discovery stood a fair chance of uncovering support for its position. See Liparoto Const, Inc v Gen Shale Brick, Inc, 284 Mich.App. 25, 33-34; 772 N.W.2d 801 (2009). Indeed, as discussed, plaintiff's arguments fail as a matter of law, primarily because the institutional adjustments about which it complains were indisputably contemplated by the Affiliation Agreement. Under these circumstances, the grant of summary disposition without additional discovery was not premature. See id.
VIII. MOTION TO AMEND PLEADINGS
Finally, plaintiff asserts that the trial court abused its discretion by denying plaintiff's motion to amend its complaint on the basis of futility. We disagree.
This Court reviews a trial court's decision regarding a plaintiff's motion to amend its complaint for an abuse of discretion. Wormsbacher v Seaver Title Co, 284 Mich.App. 1, 8; 772 N.W.2d 827 (2009). "[I]f the trial court's decision results in an outcome within the range of principled outcomes, it has not abused its discretion." Id.
Under MCR 2.116(I)(5), when granting summary disposition, "[i]f the grounds asserted are based on subrule (C)(8), (9), or (10), the court shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would not be justified." Leave to amend "shall be freely given when justice so requires" and may "ordinarily be denied only for particularized reasons." Wormsbacher, 284 Mich.App. at 8 (quotation marks and citations omitted). Among the reasons that justify denying leave is futility. Id. Amendment would be futile when the proposed complaint "is legally insufficient on its face" or when "the paragraphs or counts the plaintiff seeks to add merely restate, or slightly elaborate on, allegations already pleaded." Id. at 8-9 (quotation marks and citations omitted).
In this case, the trial court did not abuse its discretion by denying plaintiff's futile motion to amend its complaint. In large part, plaintiff's amended complaint merely rehashes its original allegations, again asserting that WSU lacked authority to make institutional adjustments. For the reasons discussed, plaintiff's allegations, particularly in light of the Affiliation Agreement, lack merit, and amendment to restate these assertions would be futile. See id. And to the extent that plaintiff argues it has presented new allegations pertaining to the proprietary function exception and the ultra vires nature of defendants' conduct relevant governmental immunity, plaintiff miscomprehends the governmental function test by focusing on specific allegations of misconduct rather than the general activity involved. See Ward, 287 Mich.App. at 84. Even if accepted as true, nothing in plaintiff's amended complaint overcomes the fact that defendants were engaged in the exercise or discharge of a governmental function when distributing MEPP funds as a public entity authorized by Michigan's state Medicaid plan. Consequently, the trial court did not abuse its discretion by denying plaintiff's futile motion to amend. See Wormsbacher, 284 Mich.App. at 8-9.
Affirmed.