holding that Michigan's narrow waiver of sovereign immunity did not include claims under 42 U.S.C. § 1983Summary of this case from Miller v. Mich. Dep't of Corr.
Docket No. 81776.
Decided October 8, 1985. Leave to appeal applied for.
Terrence H. Bloomquist, for plaintiff.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and David G. Edick, Assistant Attorney General, for defendants.
Plaintiff sued defendants in the Court of Claims to recover for personal injuries allegedly inflicted in a series of assaults by unknown guards and inmates while plaintiff was incarcerated at the State Prison of Southern Michigan. His first amended complaint set forth the following eight causes of action: (1) intentional infliction of injury; (2) negligence; (3) maintenance of a defective condition in a public building; (4) breach of contract; (5) fraud; (6) violation of civil rights under 42 U.S.C. § 1983 and the federal and Michigan Constitutions; (7) conspiracy to deprive plaintiff of his constitutional rights under 42 U.S.C. § 1985(3); and (8) knowingly failing to prevent the conspiracy alleged in count (7), in violation of 42 U.S.C. § 1986. The Court of Claims held that it was without jurisdiction to hear plaintiff's constitutional claims and that plaintiff's remedy, if any, was in federal court. Further, the court stated that it did not believe that the state constituted a "person" within the meaning of 42 U.S.C. § 1983. With respect to the remaining claims, the lower court found that they were barred by the doctrine of governmental immunity or that plaintiff had failed to adequately plead a cause of action. The court further held that plaintiff's claim for intentional infliction of injury was not barred by the statute of limitations. Plaintiff appeals as of right from the Court of Claims' order granting summary judgment to defendants. Plaintiff does not appeal from the finding in regard to negligence.
By cross-appeal, defendants apparently maintain that all of plaintiff's claims, and not just count I, are barred by the statute of limitations to the extent that these claims arise out of assaults predating April 1982. The complaint was filed on April 24, 1984. Defendants argue that the two year period of limitation for assault and battery in MCL 600.5805(2); MSA 27A.5805(2) governs, as opposed to the three year period of limitation for personal injury claims found in MCL 600.5805(8); MSA 27A.5805(8). In contrast, the lower court held that the three-year period of limitation found in the Court of Claims Act applied, MCL 600.6452(1); MSA 27A.6452(1), and that by virtue of his incarceration plaintiff was entitled under MCL 600.5851(1); MSA 27A.5851(1) to an additional year to file his claims. Defendants maintain that this tolling provision was erroneously applied as a tacking provision. Given our disposition of plaintiff's claims on alternative grounds, we do not reach the statute of limitations issue and express no opinion with regard to its merits.
Court of Claims Jurisdiction.
Defendants averred that the Court of Claims was devoid of subject-matter jurisdiction over constitutional claims and actions against individuals. Although the lower court made no disposition regarding claims against individuals, it found that it was without jurisdiction over constitutional claims, believing that they could not be categorized as either ex contractu or ex delicto.
The jurisdiction of the Court of Claims is exclusive and extends to "all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its departments, commissions, boards, institutions, arms, or agencies". MCL 600.6419(1); MSA 27A.6419(1). Defendants maintain the "ex delicto" should be narrowly construed so as to encompass only traditional common-law torts. We do not believe that the meaning of ex delicto was intended to be so restricted.
Black's Law Dictionary (4th ed), p 660 defines "ex delicto" as "[f]rom a delict, tort, fault, crime, or malfeasance". "Delict" has a broader meaning than "tort" and is defined as "[a] wrong or injury; an offense, a violation of public or private duty". Id. p 514. "Ex delicto" describes one of two great classes into which all civil and common-law causes of action can be divided. The other class, ex contractu, pertains to civil actions arising out of contract. In contrast, ex delicto claims "are such as grow out of or are founded upon a wrong or tort". Id. p 660.
Constitutional claims arising out of violations of civil rights have been regarded as a "species of tort liability". Carey v Piphus, 435 U.S. 247, 253; 98 S Ct 1042; 55 L Ed 2d 252 (1978). Moreover, such claims have been compared to personal injury actions for purposes of determining the applicable statute of limitations. Wilson v. Garcia, 471 US ___; 105 S Ct 1938; 85 L Ed 2d 254 (1985). Since ex delicto claims encompass wrongs against persons which are not restricted soley to traditional torts, and, in any event, civil rights actions are in the nature of torts and can be regarded as delicts, we believe that the Court of Claims was vested with subject-matter jurisdiction over plaintiff's constitutionally-based civil rights claims.
Generally, the Court of Claims does not have jurisdiction over suits against individuals. MCL 600.6419(1); MSA 27A.6419(1). However, jurisdiction does extend to suits against state officers where the acts complained of were performed in an officer's official capacity. Abbott v. Secretary of State, 67 Mich. App. 344; 240 N.W.2d 800 (1976); Grunow v. Sanders, 84 Mich. App. 578; 269 N.W.2d 683 (1978); Burnett v. Moore, 111 Mich. App. 646; 314 N.W.2d 458 (1981); Hamilton v. Reynolds, 129 Mich. App. 375; 341 N.W.2d 152 (1983). In determining whether an individual qualifies as a "state officer", the "primary focus [is] on the degree of discretion and independence associated with the position". Hamilton, supra, p 379, citing People v Freedland, 308 Mich. 449, 456-457; 14 N.W.2d 62 (1944). Clearly, defendant Perry Johnson is a "state officer", as the complaint states a claim against him only in his official capacity as the Director of the Michigan Department of Corrections. However, the unknown inmates certainly do not qualify as "state officers". Moreover, we do not believe that the unknown guards were "state officers", given their limited degree of discretion and independence. Accordingly, the Court of Claims had jurisdiction over the suit against Perry Johnson, but not over claims alleged against James and John Doe.
The Court of Claims was in error when it held that it was divested of jurisdiction by MCL 600.6440; MSA 27A.6440. This provision bars an action in the Court of Claims if the claimant has an adequate remedy in federal court. The Eleventh Amendment to the United States Constitution "bars suits [for monetary damages] against an unconsenting state in federal court not only when the state is the named party, but also when it is the party in fact". Gordon v. Sadasivan, 144 Mich. App. 113, 118; 373 N.W.2d 258 (1985), citing Scheuer v. Rhodes, 416 U.S. 232; 94 S Ct 1683; 40 L Ed 2d 90 (1974). The Court of Claims Act is not to be construed as a consent to a suit by a private citizen against the state. Brown Brothers Equipment Co v. Michigan, 266 F. Supp. 506 (WD Mich, 1967). Moreover, we have found no authority to indicate that this state has consented to suits in federal court which are founded upon 42 U.S.C. § 1983. Since defendants State of Michigan, Department of Corrections and Perry Johnson could raise the Eleventh Amendment as a defense to this action in federal court, plaintiff's remedy in federal court is inadequate. Therefore, § 6440 did not divest the Court of Claims of jurisdiction.
State Amenability to Suit Under § 1983.
In 42 U.S.C. § 1983, Congress provided:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of an 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. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia."
Presently, there is a conflict in this Court, paralleling a conflict evident in courts throughout the nation, relative to whether a "state" constitutes a "person" under 42 U.S.C. § 1983. This split of authority is in large part based on divergent interpretations of Monell v. Dep't of Social Services of the City of New York, 436 U.S. 658; 98 S Ct 2018; 56 L Ed 2d 611 (1978), and Quern v. Jordan, 440 U.S. 332; 99 S Ct 1139; 59 L Ed 2d 358 (1979).
Although unclear, the lower court apparently held that the state did not constitute a person under 42 U.S.C. § 1985(3) and 1986, as well as 42 U.S.C. § 1983. We do not purport to address whether a state is a person under §§ 1985(3) or 1986, since it is manifestly clear that plaintiff has failed to state a cognizable claim under either of these provisions. Plaintiff made no allegation of an invidiously discriminatory class-based animus, which is a necessary element to a claim under § 1985(3). See Griffin v. Breckenridge, 403 U.S. 88, 101; 91 S Ct 1790; 29 L Ed 2d 338 (1971); Fallis v. Toastmasters International, Inc, 467 F.2d 1389 (CA 5, 1972). In the absence of a properly pled § 1985(3) claim, there can be no claim for relief under § 1986. See Veres v. Monroe County, 364 F. Supp. 1327 (ED Mich, 1973), aff'd 542 F.2d 1177 (CA 6, 1976), cert den 431 U.S. 969 (1977).
Some courts have based their holdings on alternative grounds. In Aubuchon v. Missouri, 631 F.2d 581 (CA 8, 1980), cert den 450 U.S. 915; 101 S Ct 1358; 67 L Ed 2d 341 (1981), the court found that a state was not a person since § 1983 was aimed at individuals and not individual states. See also Seltzer v Ashcroft, 675 F.2d 184 (CA 8, 1982), cert den 104 S Ct 185 (1983); St Louis County, Missouri v. City of Town Country, 590 F. Supp. 731 (ED Mo, 1984); Shaw v. St Louis, 664 S.W.2d 572 (Mo App, 1983), cert den 105 S Ct 165 (1984). Other courts have either directly or indirectly relied on cases predating Monell, supra, and/or on Monroe v. Pape, 365 U.S. 167; 81 S Ct 473; 5 L Ed 2d 492 (1961), which determined that municipalities were not persons, but which was overruled by Monell. See Hambley v State, 459 So.2d 408 (Fla App, 1984); Thomas v. New York Temporary State Comm on Regulation of Lobbying, 83 A.D.2d 723; 442 N.Y.S.2d 632 (1981), aff'd 56 N.Y.2d 656; 451 N.Y.S.2d 708; 436 N.E.2d 1310 (1982); Stanislaus Food Products Co v. Public Utilities Comm, 560 F. Supp. 114 (ND Cal, 1982). Although other courts have determined that a state is not a person, the analyses are insufficient to determine the basis for these holdings. See Laje v. R E Thomason General Hospital, 665 F.2d 724 (CA 5, 1982); Richards v. New York State Dep't of Correctional Services, 572 F. Supp. 1168 (SD NY, 1983); Wrenn v. Kansas, 561 F. Supp. 1216 (D Kan, 1983); Holbrook v. Tennessee Dep't of Employment Security, 602 F. Supp. 507 (MD Tenn, 1984).
In Monell, supra, the Supreme Court explicitly overruled Monroe v. Pape, 365 U.S. 167; 81 S Ct 473; 5 L Ed 2d 492 (1961), to hold that "Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies". 436 U.S. 690. (Emphasis in original.) However, the Court indicated that its holding was "of course, limited to local government units which are not considered part of the State for Eleventh Amendment purposes". Id., fn 54. Nonetheless, some courts have held that states are persons based on Monell, believing that it would be inconsistent to regard municipalities and states as different under § 1983. See e.g., Atchison v Nelson, 460 F. Supp. 1102 (D Wyo, 1978); cf., Morrow v. Sudler, 502 F. Supp. 1200 (D Colo, 1980). Conversely, other courts have held that states are not persons within the meaning of § 1983, based on the fact that Monell restricted its holding to municipalities. See Taylor v. Mitzel, 82 Cal.App.3d 665; 147 Cal.Rptr. 323 (1978), cited in DeVargas v. State ex rel New Mexico Dep't of Corrections, 97 N.M. 447; 640 P.2d 1327 (1981); Clark v. Michigan, 498 F. Supp. 159 (ED Mich, 1980).
In Quern, supra, the Court held that in enacting § 1983 Congress did not intend to abrogate the sovereign immunity of the states guaranteed by the Eleventh Amendment. In a related prior case, the Court had held that under § 1983 "a federal court's remedial power, consistent with the Eleventh Amendment [was] necessarily limited to prospective injunctive relief * * * and [could] not include a retroactive award which [would require] the payment of funds from the state treasury". Edelman v. Jordan, 415 U.S. 651, 677; 94 S Ct 1347; 39 L Ed 2d 662, reh den 416 U.S. 1000 (1974). In Quern, the Court reaffirmed its holding in Edelman, indicating that prospective relief could be afforded against state officials under § 1983. Moreover, the Court upheld a decision requiring the state to send out notices to a plaintiff class, finding that the notices would not infringe on the Eleventh Amendment.
In a concurring opinion in Quern, Justice Brennan characterized the majority's holding as a determination "that a State is not a `person' [under § 1983]", 440 U.S. 350, a holding with which he did not agree. Although the majority opinion did not expressly refute this characterization, it engaged in a debate with Justice Brennan which has generated confusion regarding the scope of the majority's holding.
Numerous courts have agreed with Justice Brennan's conclusion that the majority effectively held that a state was not a person. See Hampton v. Michigan, 144 Mich. App. 794; 377 N.W.2d 920 (1985); Merritt v. State, 108 Idaho 20; 696 P.2d 871 (1985); State v Green, 633 P.2d 1381 (Alas, 1981); Boldt v. State, 101 Wis.2d 566; 305 N.W.2d 133, cert den 454 U.S. 973; 102 S Ct 524; 70 L Ed 2d 393 (1981); Edgar v State, 92 Wn.2d 217; 595 P.2d 534 (1979), cert den 444 U.S. 1077; 100 S Ct 1026; 62 L Ed 2d 760 (1980). These cases appear to mesh the § 1983 and Eleventh Amendment inquiries, i.e., they conclude that based on Quern, Congress did not intend to encroach upon the states' sovereign immunity and, thus, states were not intended to be designated as persons under § 1983. See Ruiz v. Estelle, 679 F.2d 1115 (CA 5, 1982), cert den 460 U.S. 1042 (1983). The reasoning in these cases appears consistent with Monell, supra, which determined that municipalities were persons based on the fact that Congress intended that municipalities be subject to § 1983 liability. In other words, Monell did not employ a bifurcated analysis with respect to personhood and immunity.
Other courts have made no explicit finding regarding whether a state is a person, but have held that § 1983 claims against states in state courts are barred based on the doctrine of sovereign immunity. See Fetterman v. University of Connecticut, 192 Conn. 539; 473 A.2d 1176 (1984); Thiboutot v. Maine, 405 A.2d 230 (1979), aff'd on other grounds 448 U.S. 1; 100 S Ct 2502; 65 L Ed 2d 555 (1980).
Yet, other cases have determined that Justice Rehnquist, who wrote for the majority in Quern, determined only that the Eleventh Amendment had not been abrogated by § 1983, while avoiding a determination relative to whether a state is a person. These cases have gone on to determine that a state is a person under § 1983. See Smith v. Michigan, 122 Mich. App. 340; 333 N.W.2d 50 (1983), lv gtd 422 Mich. 971 (1985); 363 N.W.2d 641 (1984), cited in Williams v. Michigan, 144 Mich. App. 438; 376 N.W.2d 117 (1985); Karchefske v. Dep't of Mental Health, 143 Mich. App. 1; 371 N.W.2d 876 (1985); Hodges v. Tomberlin, 510 F. Supp. 1280 (SD Ga, 1980); Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507; 646 P.2d 1078 (1982), cert den 459 U.S. 1103 (1983); Marrapese v. Rhode Island, 500 F. Supp. 1207 (D RI, 1980); Irwin v. Calhoun, 522 F. Supp. 576 (D Mass, 1981).
Based on Will v. Dep't of Civil Service, 145 Mich. App. 214; 377 N.W.2d 826 (1985), lv gtd 422 Mich. 971 (1985), which held that a state was not a person under § 1983, this Court issued a certification of conflict order to the Michigan Supreme Court in accord with Administrative Order No. 1984-2, 418 Mich lxxxii.
Although we believe that there are compelling arguments on both sides of this issue, we hold that a state is a "person" under 42 U.S.C. § 1983. We find that the latter group of cases, holding that a state is a "person" under 42 U.S.C. § 1983, presents a more well-reasoned analysis for the following reasons. First, Quern, supra, and Edelman, supra, indicated that prospective injunctive relief could be afforded in federal courts against states pursuant to § 1983. As the court noted in Hodges, supra, p 1283:
"[I]t is obvious that, if any relief at all may be afforded under § 1983 against a state, it must be a `person' within the meaning of the statute for at least some purposes."
Second, we do not believe that the Quern majority implicitly decided that a state was a person as Justice Brennan suggested. Rather, in accord with Smith, supra, and Karchefske, supra, we believe that the holding was limited to a determination that § 1983 did not nullify the sovereign immunity of the states secured by the Eleventh Amendment. The Eleventh Amendment bars a suit against a state in federal court only if the state has not waived its immunity. Hans v. Louisiana, 134 U.S. 1; 10 S Ct 504; 33 L Ed 842 (1890); Alabama v. Pugh, 438 U.S. 781; 98 S Ct 3057; 57 L Ed 2d 1114 (1978). As the Court noted in Karchefske, states are free to abrogate their own immunity to actions based on § 1983 even if Congress did not do so when enacting § 1983. See Pennhurst State School Hospital v Halderman, ___ US ___; 104 S Ct 900; 79 L Ed 2d 67 (1984). Yet, such a result would be precluded if states were found not to be persons within the meaning of § 1983.
After concluding that a state was a person under § 1983, the Karchefske panel held that § 1983 actions against the state and state agencies were nonetheless barred in state courts. This holding was based, in part, on Quern, supra, which found that there was no abrogation of Eleventh Amendment immunity since there was only scant evidence of a Congressional intent to the contrary. Quern indicated that if Congress had intended to abrogate such a well-established right it would have done so in a more express fashion. In Karchefske, p 9, the Court stated that it "would expect the same clarity of Congressional intent to abrogate traditional sovereign immunity as the United States Supreme Court demanded (and found lacking) in Quern, supra, with respect to Eleventh Amendment immunity". As the State of Michigan's waiver of sovereign immunity applies only in narrow situations, see MCL 691.1407; MSA 3.996(107) Ross, supra, Karchefske concluded that the state had not made itself amenable to suit under 42 U.S.C. § 1983. Since we do not believe that Congress intended to abrogate a state's sovereign immunity against its will by permitting the institution of § 1983 actions in state courts, while barring their institution in federal forums, we adopt the reasoning of the Karchefske opinion. Accordingly, we hold that plaintiff has failed to state a cognizable claim against the state and the Department of Corrections.
Although in his complaint plaintiff premised his civil rights claim on violations of various provisions in the Michigan Constitution and the United States Constitution, as well as § 1983, he has not raised any argument in regard to these alternative provisions in his brief on appeal. Further, plaintiff has not alleged in his complaint that defendants are vicariously liable under § 1983 for the actions of the unknown guards and inmates. Accordingly, we express no opinion on these issues.
Further, we do not believe that plaintiff has stated a claim against defendant Johnson under § 1983. Plaintiff has sued defendant Johnson only in his official capacity. He has not alleged a causative act or omission by this defendant which resulted in his injuries. See Clark, supra. Moreover, there are no allegations in the complaint that defendant Johnson acted in bad faith. Thus, as a public official, he is entitled to qualified immunity. Baker v. Detroit, 458 F. Supp. 379 (ED Mich, 1978), aff'd on other grounds sub nom Bratton v. Detroit, 704 F.2d 878 (CA 6, 1983), cert den 104 S Ct 703, reh den 104 S Ct 1431 (1984).
Plaintiff's State Law Claims.
In Ross, 420 Mich. 624, the Supreme Court stated:
"Respondeat superior liability generally can be imposed [against a governmental agency] only where the individual tortfeasor acted during the course of his or her employment and within the scope of his or her authority. If either of these conditions is not met, a governmental agency cannot be held vicariously liable." (Footnote omitted.)
We note that Ross, supra, imposed some additional caveats on the respondeat superior liability of the state. However, with respect to count I of plaintiff's complaint, entitled "Intentional Infliction of Injury", we find that the foregoing test is dispositive. Citing Hinds v. Dep't of Corrections, 126 Mich. App. 99; 337 N.W.2d 1 (1982), lv den 422 Mich. 901 (1985), the lower court held that the state defendants could not be held vicariously liable for the actions of the unknown guards and inmates; the alleged assaults clearly constituted illegal actions and, thus, the guards or inmates could not be viewed as agents or servants of the state. We concur with the trial court's holding and find that this result is compelled by Ross, supra. Since, generally, an employee cannot be viewed as acting within the scope of his authority while committing an intentional tort, see Borsuk v. Wheeler, 133 Mich. App. 403; 349 N.W.2d 522 (1984), Ross indicates that vicarious liability will not attach for the assaults inflicted by the guards. In addition, we can see no basis for imposing vicarious liability on the state for the actions of inmates.
Plaintiff also maintains that the state defendants can be held directly liable for an intentional tort, based on their alleged intentional failure to transfer plaintiff to a different unit within the prison. However, the mere characterization of an act as "intentional" does not transform simple negligence into an intentional tort. Elliott v. Dep't of Social Services, 124 Mich. App. 124; 333 N.W.2d 603 (1983); Hobrla v. Glass, 143 Mich. App. 616; 372 N.W.2d 630 (1985). Moreover, this Court has held that an intentional tort must be based on an act of commission, as opposed to an act of omission. Hobrla; Williams, supra. Accordingly, we believe that this claim is so clearly unenforceable as a matter of law that no factual development could provide a basis for recovery. Abel v. Eli Lilly Co, 418 Mich. 311; 343 N.W.2d 164 (1984).
We also hold that plaintiff has failed to state a claim under the public building exception to governmental immunity. See MCL 691.1406; MSA 3.996(106). Although a prison constitutes a public building, Green v. Dep't of Corrections, 386 Mich. 459; 192 N.W.2d 491 (1971), the exception is generally limited to allegations of a "dangerous building by way of improper design, faulty construction or the absence of safety devices". Hinds, p 101, citing Pichette v. Manistique Public Schools, 403 Mich. 268; 269 N.W.2d 143 (1978); Lockaby v. Wayne County, 406 Mich. 65; 276 N.W.2d 1 (1979); Bush v. Oscoda Area Schools, 405 Mich. 716; 275 N.W.2d 268 (1979). The exception does not extend to allegations of (1) a failure to provide protection from, or adequate supervision of, other inmates, (2) a failure to provide adequate staff and medical care, or (3) a failure to properly classify plaintiff and/or remove him from the general prison population. See Hinds, supra. These allegations sound in negligence and do not constitute allegations of danger caused by the building itself. See Vargo v. Svitchan, 100 Mich. App. 809; 301 N.W.2d 1 (1980), app dis 411 Mich. 1035 (1982). Based on these allegations, plaintiff has failed to plead in avoidance of governmental immunity. With respect to allegations regarding the lack of a padded cell and an inadequate physical structure, it is clear that plaintiff's injuries did not arise from such alleged defects, but from the assaults allegedly inflicted by unknown guards and inmates. Accordingly, we believe that summary judgment was properly granted on this claim.
Plaintiff maintains that he successfully stated a claim based on implied contract and promissory estoppel theories. In his complaint, he alleges that defendants agreed to provide him with a safe living environment, that this "agreement" was enforceable, and that defendants breached the agreement. However, a contract based on implication must still satisfy the elements of mutual assent and consideration, Spruytte v. Dep't of Corrections, 82 Mich. App. 145; 266 N.W.2d 482 (1978). In Spruytte, the Court found that no implied bailment contract could be found to exist because (1) there was no mutual assent since the procedure for bailment of property upon incarceration was required as an aspect of prison management and control, and (2) there could be no finding of consideration since defendant was performing a preexisting duty. In the instant case, plaintiff did not assent to the provision of a safe living environment by prison authorities. He was sentenced to prison against his will and was thereby forced to accept the conditions provided. Although he may have been entitled to a safe environment, an entitlement is not the equivalent of an agreement. Moreover, we do not believe that there was any consideration for this alleged contract since defendants had a preexisting duty to provide a safe environment. In addition, plaintiff failed to plead a claim for promissory estoppel, since the complaint does not allege that he relied on any promise made by defendant. See Restatement Contracts, 2d, § 84, comment (b), p 218.
Plaintiff alleges that defendant knowingly failed to disclose the limitations of the protective custody unit where he was housed. These allegations do not constitute a properly pled cause of action for fraud. Averments of fraud must be stated with particularity. GCR 1963, 112.2; MCR 2.112(B). Plaintiff has not alleged that defendants intended to induce him to rely on this nondisclosure. See Fassihi v. Sommers, Schwartz, Silver, Schwartz Tyler, PC, 107 Mich. App. 509; 309 N.W.2d 645 (1981). Moreover, plaintiff has failed to allege that defendants had an affirmative duty to disclose these facts, an element which is essential to a claim of silent fraud. See Lumber Village, Inc v. Siegler, 135 Mich. App. 685; 355 N.W.2d 654 (1984). Therefore, plaintiff has failed to state a claim for relief.
Finally, plaintiff maintains that he was entitled to amend his complaint so as to state a claim before summary judgment was entered. This argument is based solely on GCR 1963, 117.3 [now MCR 2.116(I)(5)] which provides each party with an opportunity to amend his or her complaint in accord with GCR 1963, 118 [now MCR 2.118] where a motion for summary judgment is based on the assertion that there is no genuine issue of material fact. Plaintiff was not entitled to the benefit of this rule since defendants' motion was brought pursuant to GCR 1963, 117.2(1) [now MCR 2.116(C)(8)] for failure to state a claim. In any event, plaintiff obtained the benefit of Rule 118 since he amended his complaint once as of right. Although he could have moved for leave to amend thereafter, or requested a stipulation from defendants allowing such an action, plaintiff took no such initiative. The onus was not on the trial court to extend plaintiff an opportunity to amend before summary judgment was granted.