Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bedford v. Witte

Court of Appeals of Michigan

November 22, 2016

MICHAEL J. BEDFORD, Plaintiff-Appellant,
v.
DEREK S. WITTE, JORDAN C. HOYER, and LAW OFFICES OF JORDAN C. HOYER, PLLC, Defendants-Appellees. GARY STEWART, JR., Plaintiff-Appellant,
v.
DEREK S. WITTE, JORDAN C. HOYER, and LAW OFFICES OF JORDAN C. HOYER, PLLC, Defendants-Appellees.

         Kent Circuit Court LC Nos. 14-011752-CZ, 14-011813-CZ

          Before: Murray, P.J., and Sawyer and Meter, JJ.

          METER, J.

         Plaintiffs Michael J. Bedford and Gary Stewart, Jr., appeal as of right an opinion and order[1] granting summary disposition under MCR 2.116(C)(8) to defendants Derek S. Witte, Jordan C. Hoyer, and the Law Offices of Jordan C. Hoyer, PLLC. These appeals involve the interpretation of the fair reporting privilege, codified at MCL 600.2911(3). We affirm in part, reverse in part, and remand for further proceedings.

         In December 2013, defendants, acting on behalf of their clients-the plaintiffs in an underlying collection action in Van Buren County-filed a complaint in the United States District Court for the Western District of Michigan against Bedford, Stewart, and others. Defendants alleged in that complaint that Bedford, Stewart, [2] and others acted unethically during the collection litigation.[3] Defendants set forth eight causes of action, including a violation of the Racketeer Influenced and Corrupt Organizations Act, 18 USC 1961 et seq.; malicious prosecution; and tortious interference with a contract. On January 2, 2014, defendant Derek Witte participated in an interview with a reporter for a local CBS affiliate. During that interview, Witte allegedly stated that "we can say with certainty" that plaintiffs broke the law by obstructing justice, committing bribery, and perpetrating mail and wire fraud. According to plaintiffs, defendants then, on the website for their law firm, posted a copy of the federal complaint and a link to the news interview.

         In December 2014, plaintiffs filed the defamation complaints that led to the present appeals. Plaintiffs alleged that defendants knowingly and maliciously made false statements about plaintiffs in the federal lawsuit and the interview and furthered their defamation by the public postings on the law firm's website. Ultimately, after various pleadings and arguments, the trial court ruled that the absolute privilege for judicial proceedings applied to the filing of the complaint and that defendants could not be held liable for this filing. The trial court additionally concluded that MCL 600.2911(3) protected defendants from liability related to the interview and the postings on the website and granted defendants' motions for summary disposition under MCR 2.116(C)(8).

         This Court reviews de novo issues of statutory interpretation and orders granting summary disposition. Johnson v Recca, 492 Mich. 169, 173; 821 N.W.2d 520 (2012); Dalley v Dykema Gossett, PLLC, 287 Mich.App. 296, 304; 788 N.W.2d 679 (2010). Under MCR 2.116(C)(8), summary disposition is appropriate if "[t]he opposing party has failed to state a claim upon 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." Dalley, 287 Mich.App. at 304-305. "Summary disposition on the basis of subrule (C)(8) should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery." Dalley, 287 at 305 (quotation marks and citation omitted).

         Moreover, this Court reviews de novo, as a question of law, whether there exists a privilege that immunizes a defendant from liability for defamation. Northland Wheels Roller Skating Ctr, Inc v Detroit Free Press, Inc, 213 Mich.App. 317, 324; 539 N.W.2d 744 (1995); Couch v Schultz, 193 Mich.App. 292, 294; 483 N.W.2d 684 (1992).

         "The elements of a defamation claim are: (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication." Mitan v Campbell, 474 Mich. 21, 24; 706 N.W.2d 420 (2005).

         Privilege can be used as a defense in a defamation action. Postill v Booth Newspapers, Inc, 118 Mich.App. 608, 618; 325 N.W.2d 511 (1982). The defense of privilege is grounded in public policy; in certain situations, the criticism uttered by the defendant is sufficiently important to justify protecting such criticism notwithstanding the harm done to the person at whom the criticism is directed. Dadd v Mount Hope Church, 486 Mich. 857, 860; 780 N.W.2d 763 (2010). "Statements made by judges, attorneys, and witnesses during the course of judicial proceedings are absolutely privileged if they are relevant, material, or pertinent to the issue being tried." Oesterle v Wallace, 272 Mich.App. 260, 264; 725 N.W.2d 470 (2006). The purpose of absolute immunity for attorneys under the judicial proceedings privilege is to promote the public policy of allowing attorneys broad freedom to obtain justice for their clients. Id. at 265. The trial court correctly ruled that the filing of the federal complaint was not actionable because of the judicial proceedings privilege.[4] See, generally, id. at 264.

         The next question is whether defendants could be held liable for posting the complaint on the firm's website. This action (and, for that matter, the interview and the posting of the link to the interview) did not fall within the judicial proceedings privilege because they were not made as part of the actual judicial proceedings but were extraneous and unnecessary to those proceedings. See Timmis v Bennett, 352 Mich. 355, 365; 89 N.W.2d 748 (1958). Defendants thus rely on the fair reporting privilege. MCL 600.2911(3) states, in relevant part:

Damages shall not be awarded in a libel action for the publication or broadcast of a fair and true report of matters of public record, a public and official proceeding, or of a governmental notice, announcement, written or recorded report or record generally available to the public, or act or action of a public body, or for a heading of the report which is a fair and true headnote of the report.[5]

         In order for a report to be privileged under this statute, the report must be "fair and true . . . ." Id. In other words, the report must substantially represent the public record or other pertinent matter. See Northland Wheels, 213 Mich.App. at 325. If any inaccuracy does not alter the effect the literal truth would have on the recipient of the information, the pertinent standard has been satisfied. Id. Clearly, the publishing of an exact copy of the complaint that initiated judicial proceedings constitutes a "fair and true" report with respect to those proceedings. Plaintiffs contend that defendants cannot avail themselves of the fair reporting privilege with regard to the posting of the complaint because (1) plaintiffs pleaded that defendants acted with malice[6] and (2) defendants were the creators of the posted document. However, "[w]e are bound to ascertain and give effect to the Legislature's intent, and the Legislature is presumed to have intended the meaning it plainly expressed." Id. "If the meaning of the statutory language is clear, judicial construction is neither necessary nor permitted." Id. MCL 600.2911(3) carves out no exception for malice or for so-called "self-reporters." See, generally, Book-Gilbert v Greenleaf, 302 Mich.App. 538, 541; 840 N.W.2d 743 (2013) (a court may not read into statutes language that the Legislature has seen fit to omit).[7]

         The cases plaintiffs cite for the proposition that malice can vitiate the fair reporting privilege in MCL 600.2911(3) are simply not apposite. Indeed, plaintiff cites cases referring to a "qualified privilege"[8] under the statute or similar, prior statutes, but a closer look at these cases reveals that they do not discuss malice. See McCracken v Evening News Ass'n, 3 Mich.App. 32, 39-40; 141 N.W.2d 694 (1966) (referring briefly to a "qualified privilege" but not discussing malice and instead concluding that the reportage in question was substantially accurate and the plaintiff had not shown proof of damages), Nabkey v Booth Newspapers, Inc, 140 Mich.App. 507, 514-515; 364 N.W.2d 363 (1985) (referring to a "qualified privilege" but not discussing malice and instead emphasizing that the statute encompassed reports of "official proceedings" and remanding for a determination regarding whether the reports in question should be characterized as such), Rouch v Enquirer & News of Battle Creek, 427 Mich. 157, 164 n 1, 164-173; 398 N.W.2d 245 (1986) (briefly referring to a "qualified privilege" but then going on simply to conclude that the statements at issue did not relate to a "proceeding" encompassed by the statute), [9] and Koniak v Heritage Newspapers, Inc, 190 Mich.App. 516, 521-524; 476 N.W.2d 447 (1991), remanded 441 Mich. 858 (1992) (mentioning a "qualified privilege" but not discussing malice and instead discussing the "fair and true" standard). See also Kefgen v Davidson, 241 Mich.App. 611, 623 n 7; 617 N.W.2d 351 (2000) (analysis under MCL 600.2911(3) focuses on whether the reportage in question was fair and true). Because "actual malice" (which, plaintiffs argue, is the applicable standard here) is defined as knowledge of falsity or recklessness regarding the issue of falsity, see id. at 624, it only makes common sense that a "fair and true" report would not be subject to an exception for malice, as plaintiffs contend. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.