Owen R Schroeder v. County of Muskegon Dhs ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
OWEN R. SCHROEDER and ANGELA RAE UNPUBLISHED
JONES, March 23, 2023
Plaintiffs-Appellants,
v No. 360472
Muskegon Circuit Court
COUNTY OF MUSKEGON DHS, also known as LC No. 2021-004341-CZ
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, TIA RYMAL, LINDSEY
LASSANSKE, KATHY SHOLTE, also known as
KATHY SHOLTY, AND BRIAN CHARRON,
Defendants-Appellees.
Before: K. F. KELLY, P.J., and BOONSTRA and REDFORD, JJ.
PER CURIAM.
Plaintiffs, Owen R. Schroeder and Angela Rae Jones, appeal as of right the trial court’s
order granting defendants, the Department of Health and Human Services (DHHS), Tia Rymal,
Lindsey Lassanske, Kathy Sholte, and Brian Charron summary disposition of plaintiff’s libel
action under MCR 2.116(C)(7) and (8) because defendants were immune from liability, the claim
was time-barred, and plaintiffs failed to state a claim. We affirm.
I. FACTUAL BACKGROUND
Schroeder is Jones’s father. Jones had her parental rights to five children terminated.
Plaintiffs’ libel claim arose from events that occurred at the end of Jones’s termination of parental-
rights proceedings. During one of Jones’s parenting-time visits in October 2019, Rymal, a DHHS
caseworker on Jones’s case, observed Schroeder exhibit what she considered inappropriate
behavior and Jones failed to intervene. Following the visit, Rymal changed the location of
remaining visits to the DHHS office. At the end of October 2019, on the last day of Jones’s
parental-rights termination trial, Rymal explained to the trial court that she moved the remaining
visits, in part, because of Schroeder’s behavior during the visit which to the court she characterized
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as threatening. Rymal included information about Schroeder’s behavior in Jones’s case service
plan which was published on November 26, 2019.
After the termination of her parental rights, Jones made multiple requests for documents
associated with her case for over 16 months, including the case service plan, but received only one
unrequested report. In March 2021, Lassanske, one of Rymal’s supervisors, provided Jones with
the requested documents including the case service plan. In July 2021, Schroeder e-mailed
defendants about statements contained in the case service plan that he believed were false. In a
reply, defendants explained that they could not retract the specified statements from the case
service plan.
In October 2021, plaintiffs filed a complaint alleging that defendants libeled Schroeder in
the case service plan. In November 2021, defendants moved for summary disposition under
MCR 2.116(C)(7) and (8). After a hearing on the motion, the trial court entered an order granting
summary disposition for defendants. Plaintiffs now appeal.
II. STANDARD OF REVIEW
We review a trial court’s decision on a motion for summary dispositions de novo. Barnard
Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 618(2009). Review of a motion for summary disposition brought under MCR 2.116(C)(7) requires us
to consider “all documentary evidence and accept[s] the complaint as factually accurate unless
affidavits or other documents presented specifically contradict it.” Shay v Aldrich, 487 Mich 648,
656; 790 NW2d 629 (2010). “The applicability of governmental immunity is a question of law
that is reviewed de novo on appeal.” Herman v Detroit, 261 Mich App 141, 143; 680 NW2d 71(2004). We review de novo the trial court’s interpretation and application of a statute. McLean v
McElhaney, 289 Mich App 592, 596; 798 NW2d 29 (2010). When a claim is barred because of
immunity granted by law, summary disposition is properly granted under MCR 2.116(C)(7).
Hannay v Dep’t of Transp, 497 Mich 45, 58; 860 NW2d 67 (2014). We also review de novo
whether a claim is barred by a statute of limitations and a trial court’s interpretation and application
of the limitations period. Stephens v Worden Ins Agency, LLC, 307 Mich App 220, 227-228; 859
NW2d 723 (2014). A motion for summary disposition based on a statute of limitations is properly
brought under MCR 2.116(C)(7). Nucolovic v Hill, 287 Mich App 58, 61; 783 NW2d 124 (2010).
III. ANALYSIS
A. GOVERNMENTAL IMMUNITY
Plaintiffs argue that the trial court erred by granting summary disposition under MCR
2.116(C)(7) on government immunity grounds because the DHHS engaged in an ultra vires act by
not making the case service plan available upon request. We disagree.
Aside from certain exceptions, none of which plaintiffs argue apply, “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). 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 determination whether an activity qualifies
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as a governmental function must focus on the “general activity involved rather than the specific
conduct engaged in when the alleged injury occurred.” Ward v Mich State Univ (On Remand),
287 Mich App 76, 84; 782 NW2d 514 (2010).
Under MCL 712A.18f(2) and (3), in the course of a termination-of-parental-rights case, the
DHHS must prepare a case service plan that provides the trial court with information “for placing
the child in the most family-like setting available and in as close proximity to the child’s parents’
home as is consistent with the child’s best interests and special needs.” In this case, the creation
and revision of the case service plan for the investigation and provision of information concerning
the children and the family for Jones’s termination-of-parental-rights case constituted general
activity in which the DHHS is engaged. See MCL 712A.18f(4) and (5). Construing the term
“governmental function” broadly, as this Court must do, Maskery v Bd of Regents of Univ of Mich,
468 Mich 609, 614; 664 NW2d 165 (2003), we conclude that the Probate Code expressly mandated
and authorized this activity. See MCL 712.18f. The DHHS engaged in a governmental function
by creating and revising the case service plan. Accordingly, the DHHS was entitled to
governmental immunity under MCL 691.1407(1).
Plaintiffs argue that Rymal, Lassanske, Sholte, and Charron were not entitled to summary
disposition of their claims under MCR 2.116(C)(7) because they engaged in ultra vires acts. We
disagree.
A caseworker or supervisor with the DHHS is immune from tort liability if engaged in the
initiation and monitoring of court-supervised child placement proceedings. Martin v Children’s
Aid Society, 215 Mich App 88, 93, 97; 544 NW2d 651 (1996). This Court first recognized absolute
immunity from tort liability for social workers who initiated and monitored court-supervised child
placement proceedings in Martin. More recently, this Court explained that “[s]ocial workers are
granted absolute immunity from civil litigation arising out of their work as ‘advisors and agents’
of the” family division of the circuit court because “without the threat of civil litigation, social
workers have more freedom to honestly assess a particular situation” in court-supervised child
placement proceedings. Beauford v Lewis, 269 Mich App 295, 300; 711 NW2d 783 (2005).
Indeed, such workers are entitled to absolute immunity for “initiating and monitoring child
placement proceedings” to ensure that the caseworkers can make the discretionary decisions that
they believe are in the children’s best interests without fear of litigation. Spikes v Banks, 231 Mich
App 341, 346-347; 586 NW2d 106 (1998); Martin, 215 Mich App at 95-98.
In this case, it is undisputed that plaintiffs’ libel claim originated from a child protection
proceeding involving the termination of Jones’s parental rights during which the trial court
oversaw Jones’s case and reviewed the case service plan for Rymal’s findings and
recommendations. Rymal, a caseworker, Lassanske and Sholte, Rymal’s supervisors, and
Charron, their manager, were assigned by the DHHS to investigate Jones’s conduct with her
children that resulted in the initiation of a termination proceeding against Jones, which involved
monitoring of the children’s well-being and Jones’s progress, and the determination whether
termination of Jones’s parental rights served the children’s best interests. These defendants
engaged in governmental functions and were entitled to immunity granted by law.
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B. STATUTE OF LIMITATIONS
Plaintiffs argue that the trial court erred by ruling their claim time-barred under the
applicable statute of limitations. We disagree.
Under MCL 600.5805(1), “[A] person shall not bring or maintain an action to recover
damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or
to someone through whom the plaintiff claims, the action is commenced within” the applicable
period of limitations. “The period of limitations is 1 year for an action charging libel or slander.”
MCL 600.5805(11). A claim accrues “at the time the wrong upon which the claim is based was
done regardless of the time when damage results.” MCL 600.5827. An action for libel accrues
from the date of publication of the libelous statement. Redmond v Heller, 332 Mich App 415, 433;
957 NW2d 357 (2020). The record reflects that plaintiffs based their libel claim on statements
published on or about November 26, 2019. Plaintiffs, however, did not file their complaint until
October 11, 2021. Their libel claim, therefore, was time-barred by MCL 600.5805(11).
Plaintiffs contend that the one-year limitations period for their libel claims was tolled
because of fraudulent concealment. Fraudulent concealment may toll the running of a statute of
limitations. Doe v Roman Catholic Archbishop, 264 Mich App 632, 642; 692 NW2d 398 (2004).
MCL 600.5855, the fraudulent concealment statute, provides:
If a person who is or may be liable for any claim fraudulently conceals the
existence of the claim or the identity of any person who is liable for the claim from
the knowledge of the person entitled to sue on the claim, the action may be
commenced at any time within 2 years after the person who is entitled to bring the
action discovers, or should have discovered, the existence of the claim or the
identity of the person who is liable for the claim, although the action would
otherwise be barred by the period of limitations.
To establish fraudulent concealment, a plaintiff must show an affirmative act or misrepresentation
on the defendant’s part designed to conceal the existence of the claim or the identity of a potential
defendant. Doe, 264 Mich App at 642-643. A plaintiff must “plead in the complaint the acts or
misrepresentations that comprised the fraudulent concealment.” Id. at 643 (quotation marks and
citation omitted). “Mere silence is insufficient.” Sills v Oakland Gen Hosp, 220 Mich App 303,
310; 559 NW2d 348 (1996). “If there is a known cause of action there can be no fraudulent
concealment which will interfere with the operation of the statute, and in this behalf a party will
be held to know what he ought to know . . . .” Weast v Duffie, 272 Mich 534, 539; 262 NW 401(1935) (quotation marks and citation omitted). In other words, “[i]f liability were discoverable
from the outset, then MCL 600.5855 will not toll the applicable period of limitations.” Prentis
Family Foundation, Inc v Barbara Ann Karmanos Cancer Institute, 266 Mich App 39, 48; 698
NW2d 900 (2005).
Plaintiffs contend that defendants’ failure to comply with multiple requests for production
of documents to which they were entitled precluded defendants from asserting the period of
limitations as a legitimate defense. The record indicates that, as of October 2019, plaintiffs
suspected that a libel claim existed because they believed Rymal provided false testimony to the
trial court and that the information would be reported in the case service plan. Plaintiffs argue,
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however, that they only discovered the claim after obtaining the case service plan in March 2021.
Plaintiffs contend that defendants intentionally withheld the case service plan which permitted
them to invoke the statutory remedy available for fraudulent concealment under MCL 600.5855.
We disagree.
MCL 600.5855 requires focusing on whether defendants “fraudulently conceal[ed] the
existence of [a] claim . . . from the knowledge of” plaintiffs. For plaintiffs’ theory to be viable,
there must be evidence that defendants did not provide the case service plan to plaintiffs to conceal
the existence of the libel claim from them. This proposition necessarily fails because plaintiffs
admitted that they suspected a libel claim as early as October 2019. Plaintiffs have failed to prove
that defendants concealed plaintiffs’ cause of action or withheld information to induce plaintiffs
to refrain from filing a complaint or caused plaintiffs to be unaware that a cause of action might
exist. Even if they were not completely confident about the suspected libel claim, plaintiffs could
have filed a complaint against defendants within the one-year limitations period. Plaintiffs’ claim,
therefore, was time-barred because they presented no evidence that defendants acted to
affirmatively conceal or misrepresent the nature or existence of plaintiffs’ cause of action.
C. FAILURE TO STATE A CLAIM
Plaintiffs argue that the trial court erred by finding that, consistent with MCR 2.116(C)(8),
they failed to state a claim on which relief could be granted. We disagree.
A motion under MCR 2.116(C)(8) tests the legal sufficiency of a complaint on the
pleadings alone and summary disposition is appropriate when a party has failed to state a claim on
which relief can be granted. Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001).
“All well-pleaded factual allegations are accepted as true and construed in a light most favorable
to the nonmovant.” Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). A court
should grant a motion under MCR 2.116(C)(8) only when the claims alleged are “so clearly
unenforceable as a matter of law that no factual development could possibly justify recovery.” Id.(quotation marks and citation omitted).
The elements of libel are:
1) a false and defamatory statement concerning the plaintiff, 2) an unprivileged
communication to a third party, 3) fault amounting to at least negligence on the part
of the publisher, and 4) either actionability of the statement irrespective of special
harm or the existence of special harm caused by publication. [Collins v Detroit
Free Press, Inc, 245 Mich App 27, 32; 627 NW2d 5 (2001) (citation omitted).]
A claim of libel must be pleaded with specificity. Royal Palace Homes, Inc v Channel 7 of Detroit,
Inc, 197 Mich App 48, 52; 495 NW2d 392 (1992). A complaint in a libel action must specifically
identify the statements that the plaintiff considers to be materially false and defamatory. Id. at 52-
53.
Although plaintiffs admit that they failed to specifically identify the statements they
considered to be defamatory in their complaint, plaintiffs argue that they did not fail to properly
plead their claim because they sent an e-mail which listed the allegedly defamatory statement to
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defendants approximately three months before they filed their complaint. We disagree because
this Court has held that the complaint must specifically plead the allegedly false and defamatory
words or statements. Id. Plaintiffs’ complaint failed to do so. Accordingly, the trial court did not
err by dismissing it.
IV. CONCLUSION
The trial court properly granted defendants summary disposition under MCR 2.116(C)(7)
because the DHHS was entitled to governmental immunity under MCL 691.1407(1), and Rymal,
Lassanske, Sholte, and Charron were entitled to absolute immunity pursuant to Martin. The trial
court also did not err by granting summary disposition to defendants under MCR 2.116(C)(7)
because tolling under the fraudulent concealment exception under MCL 600.5855 did not apply
and plaintiffs’ claim was time-barred by their failure to file their complaint within the applicable
one-year statute of limitations under MCL 600.5805(11). Further, the trial court did not err by
granting summary disposition to defendants under MCR 2.116(C)(8) because plaintiffs’ complaint
failed to properly plead a claim on which relief can be granted.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Mark T. Boonstra
/s/ James Robert Redford
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