Plaintiffs appeal as of right from the trial court's order granting defendant's motion for summary disposition on the grounds of governmental immunity. MCR 2.116(C)(7), (8). We reverse.
Plaintiffs are licensed by defendant Michigan Department of State as an automobile dealer. Plaintiffs were charged with violations of the Michigan Vehicle Code and, following a hearing, the Secretary of State suspended plaintiffs' "dealer license and all privileges attendant with [plaintiffs'] buying, selling, brokering and dealing in vehicles" for a period of seventeen business days commencing December 1, 1986. Plaintiffs did not appeal and do not challenge this order. However, plaintiffs claim that defendant, for the supposed purpose of enforcing the suspension, went beyond the authority granted to defendant by statute.
According to plaintiffs' amended complaint, defendant's employee and representative did the following ultra vires acts: locked and bolted plaintiffs' place of business for the duration of the suspension period; prohibited plaintiffs from removing parts on vehicles already owned by plaintiffs; prohibited plaintiffs from selling any vehicle parts; prohibited plaintiffs from moving vehicles
Defendant moved for summary disposition under MCR 2.116(C)(4), (7) and (8), alleging that it had governmental immunity from plaintiffs' tort claims. The trial court issued an order granting summary disposition without specifying the sub-rule upon which the order was based. The trial court found that defendant had the authority to enforce its order and that the acts pled did not rise to the ultra vires level, but were normal enforcement actions. We do not agree.
A motion for summary disposition may be granted if the plaintiff's claims are barred by immunity granted by law. MCR 2.116(C)(7). When reviewing a motion brought under MCR 2.116(C)(7), this Court must consider the affidavits, pleadings, depositions, admissions and documentary evidence filed or submitted by the parties. MCR 2.116(G); Eichhorn v Lamphere School Dist, 166 Mich.App. 527, 536; 421 N.W.2d 230 (1988). This Court must consider all well-pled allegations as true and construe them most favorably to the plaintiff. Male v Mayotte, Crouse & D'Haene Architects Inc, 163 Mich.App. 165, 168; 413 N.W.2d 698 (1987), lv den 429 Mich. 901 (1988).
A motion for summary disposition may also be granted if the plaintiff failed to state a claim upon which relief can be granted. MCR 2.116(C)(8). A motion under MCR 2.116(C)(8) tests the legal basis
All government agencies are immune from tort liability for injuries arising out of the exercise and discharge of a nonproprietary, governmental function. Ross v Consumers Power Co (On Rehearing), 420 Mich. 567, 591; 363 N.W.2d 641 (1984). A governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute or other law. An agency's ultra vires acts are not entitled to immunity. Ross, supra at 591.
An agency has no inherent power. Any authority it may have is vested by the Legislature, in
In this case, defendant's authority to provide for the licensing of vehicle dealers is derived from the Michigan Vehicle Code, MCL 257.1 et seq.; MSA 9.1801 et seq. The statute requires that vehicle dealers be licensed, MCL 257.248; MSA 9.1948, and provides for denial, suspension or revocation of licenses, MCL 257.249; MSA 9.1949. A general penalty section provides:
However, we do not find, and defendant does not cite, any provision in the statute for enforcement of a license suspension. Plaintiffs do not contest the license suspension in this case, merely the manner in which that suspension was enforced.
Even assuming, arguendo, that the authority to enforce a suspension is implied in MCL 257.248; MSA 9.1948, defendant in this case completely shut down plaintiffs' business, even prohibiting activities which did not require a dealer's license. Defendant suggests that any activity of the Michigan Department of State is entitled to governmental
Since it appears from the pleadings that defendant was functioning outside its scope of authority by closing down plaintiffs' entire business to enforce the suspension of plaintiffs' dealer license, summary disposition was improperly granted.