Opinion
No. 350701
10-22-2020
SHAUN BLACK, PHD, Plaintiff-Appellant, v. PIPER BOGNAR, Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Macomb Circuit Court
LC No. 2019-001558-CD Before: SWARTZLE, P.J., and JANSEN and BORRELLO, JJ. PER CURIAM.
Plaintiff appeals as of right the trial court's order granting defendant's motion for summary disposition under MCR 2.116(C)(7) (governmental immunity) and (c)(8) (failure to state a claim for relief) in this action involving claims for defamation, abuse of process, and malicious prosecution. We affirm.
I. FACTS AND PROCEEDINGS
Defendant is the superintendent of the Van Dyke School District in Warren. Plaintiff was assistant superintendent of curriculum and instruction for the 2017-2018 school year. In March 2018, plaintiff, defendant, and the Human Resources director met in defendant's office to discuss plaintiff's contract. Defendant informed plaintiff that she would be recommending to the school board against renewal or continuation of plaintiff's contract for the 2018-2019 school year. She advised plaintiff that she would submit her recommendation to the school board for approval unless plaintiff voluntarily resigned. According to defendant, plaintiff became enraged, stood up, and angrily protested her decision, yelling in her face. Defendant was frightened by plaintiff's response.
Plaintiff chose to resign his employment. On September 17, 2018, plaintiff came to the school administration building to attend a school board meeting. Plaintiff alleges that he planned to speak at the meeting to inform the board that defendant's motive in removing plaintiff was to secure the position for a personal friend. He also intended to speak about racism in the school district. Plaintiff parked directly outside defendant's office window. Another employee informed defendant that plaintiff was "staring intently" into her office. Defendant received a text message from plaintiff stating, "Hey!!! What are you doing?" Plaintiff left without attending the board meeting.
On September 20, 2018, defendant filed a petition for a personal protection order (PPO) against plaintiff under MCL 600.2950a et seq. The petition alleged that defendant felt threatened by plaintiff's conduct at the March 2018 meeting in her office and before the September 17 school board meeting. At the hearing on defendant's motion, the court agreed with defendant that the two incidents were disturbing, but it found that defendant failed to satisfy the statutory requirement of two incidents of harassment or intimidation occurring after the respondent was asked to cease contact. Accordingly, the court denied the petition, but instructed plaintiff to leave defendant alone and advised defendant that she could file another petition if plaintiff committed any additional acts of intimidation or harassment.
On April 23, 2019, plaintiff filed the instant lawsuit against defendant. Plaintiff alleged that defendant made false and incriminating statements about him in her PPO petition. He asserted claims for defamation, malicious prosecution, and abuse of process. Defendant moved for summary disposition under MCR 2.116(C)(7) and (8). She argued that she was entitled to immunity under the governmental tort liability act (GTLA), MCL 691.1401 et seq., and that her statements in the PPO petition were privileged because they were statements made in a judicial proceeding. The trial court agreed and granted defendant's motion for summary disposition.
II. STANDARD OF REVIEW
A trial court's decision on a motion for summary disposition is reviewed de novo. Pew v Mich State Univ, 307 Mich App 328, 331; 859 NW2d 246 (2014). "A defendant is entitled to summary disposition under MCR 2.116(C)(7) if the plaintiff's claims are barred because of immunity granted by law." Id. at 331-332. "The moving party may support its motion with affidavits, depositions, admissions, or other documentary evidence." Id. at 332, citing MCR 2.116(G)(5) and (6). "If reasonable minds could not differ on the legal effects of the facts, whether governmental immunity bars a plaintiff's claim is a question of law." Pew, 307 Mich App at 332.
A motion for summary disposition under MCR 2.116(C)(8) tests "the legal sufficiency of a claim by the pleadings alone." Lawrence v Burdi, 314 Mich App 203, 211; 886 NW2d 748 (2016), quoting Averill v Dauterman, 284 Mich App 18, 21; 772 NW2d 797 (2009). A motion under Subrule (C)(8) is reviewed "to determine whether the claim is so clearly unenforceable as a matter of law that no factual development could establish the claim and justify recovery. All factual allegations supporting the claim, and any reasonable inference or conclusions that can be drawn from the facts, are accepted as true." Lawrence, 314 Mich App at 211, quoting Averill, 284 Mich App at 21.
III. DEFAMATION
A. GOVERNMENTAL IMMUNITY
Defendant claimed immunity under MCL 691.1407(5), which provides:
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 provision, the Legislature codified the holding in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), that granted to "judges, legislators, and the highest executive officials at all levels of government . . . immunity from all tort liability when acting within the scope of their judicial, legislative, or executive authority." Odom v Wayne Co, 482 Mich 459, 468; 760 NW2d 217 (2008), citing Ross, 420 Mich at 421.
School districts are entitled to governmental immunity. Genesee Co Drain Comm'r v Genesee Co, 309 Mich App 317, 325; 869 NW2d 635 (2015). "The superintendent of a school district is the highest appointive executive official of a level of government." Baker v Couchman, 271 Mich App 174, 179; 721 NW2d 251 (2006), rev'd on other grounds 477 Mich 1097 (2007). In Baker, the plaintiff was a former sheriff's deputy who had been assigned as a school resource officer in the school district in which the defendant was superintendent. The plaintiff brought suit alleging that the defendant violated the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq., and tortiously interfered with the plaintiff's employment with the sheriff's office. Baker, 271 Mich at 177. The plaintiff's claims arose from incidents in which the defendant allegedly interfered with the plaintiff's attempts to investigate thefts and traffic violations on school property. In each of the incidents, the defendant sided with the student the plaintiff believed to be culpable, instructed the plaintiff to cease his investigation, and refused to cooperate with the plaintiff's request for evidence and documents. Id. at 181-182. The defendant also circulated a pamphlet denouncing the plaintiff, solicited parents' assistance in petitioning for his removal, and contacted the sheriff's department to request his removal. Id. at 182. The trial court granted the defendant's motion for summary disposition on grounds of governmental immunity with respect to the WPA claim, but not with respect to the claim for tortious interference with a business relationship. Id. at 178. On appeal to this Court, a panel majority concluded that the defendant was acting within the scope of his authority when he supervised the plaintiff's activities as a resource officer, and when he expressed concerns to the plaintiff's superiors, to the school board, and to the general public. Id. at 182-183. However, this Court concluded that actively interfering with the plaintiff's criminal investigations was outside his executive authority. Id. at 183. This Court agreed that it was within the defendant's authority to become involved in the investigation "to the extent it was necessary to advocate for its students' best interests," but held that the superintendent "loses its authority to direct or interfere with law enforcement personnel's function of investigating conduct violative of the laws of this state." Id. at 183-184. This Court therefore affirmed the trial court's partial denial of summary disposition. Id. at 190.
Writing in partial dissent, Judge O'Connell opined that MCL 691.1407(5) provided the defendant "with absolute immunity for every allegedly 'wrongful' action supporting plaintiff's claim for tortious interference with business relations." Baker, 271 Mich App at 192. He stated:
The absolute immunity extended to highest-level executives does not contain an intentional-tort or "malevolent-heart" exception, and the executive's motivation for acting is irrelevant to the analysis. American Transmissions, Inc v Attorney General, 454 Mich 135, 143; 560 NW2d 50 (1997). Instead, whether an action falls within an executive's scope of authority depends on factors such as " '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 141, 560 NW2d 50, quoting Marrocco v Randlett, 431 Mich 700, 711; 433 NW2d 68 (1988). [Baker, 271 Mich App at 197-198 (O'CONNELL, J., dissenting in part).]Judge O'Connell concluded that a school superintendent's authority to investigate and punish minor criminal incidents on school grounds extended to the defendant's decision to stop the plaintiff's investigations. Id. at 198. The superintendent's authority to "create appropriate boundaries on the nature and extent of plaintiff's proactive law enforcement activities" included the authority to stop investigations and withhold documentation. Id. at 198-199. The superintendent's subjective motives, or the rightfulness or wrongfulness of his actions, did not alter the conclusions that the acts were taken within his authority. Id. at 205-206. Judge O'Connell stated that he would have reversed the judgment against the defendant. Id. at 206.
On further appeal to our Supreme Court, that Court reversed this Court's judgment for the reasons stated in Judge O'Connell's partial dissent and remanded to the trial court for entry of summary disposition in favor of the defendant under MCR 2.116(C)(7). Baker v Couchman, 477 Mich 1097 (2007).
In American Transmissions, Inc v Attorney General, 454 Mich 135; 560 NW2d 50 (1997), our Supreme Court held that the state attorney general, as the highest elective official of his department, acted within the scope of his executive authority when he made allegedly defamatory statements about the plaintiff in a television interview about his department's fraud investigation. The Court observed that "[d]oubts had been expressed regarding the propriety of the department's conduct, and [the attorney general] was responding to questions regarding the investigation." Id. at 144.
In view of our Supreme Court's decisions in Baker and American Transmissions, we conclude that defendant's filing of the PPO petition was an act within the scope of her executive duty. Defendant's conflict with plaintiff arose solely from the employment relationship and plaintiff's reaction to her unfavorable decision. Both incidents alleged in the PPO occurred on school district property. The incidents occurred in the context of a discussion regarding renewal of plaintiff's contract with the school district and when plaintiff appeared at defendant's workplace with the intent of attending a school board meeting. The apparent purpose of plaintiff's conduct was to influence defendant's executive decisions and to retaliate against her for her decisions in her capacity as the school district superintendent. Although defendant filed the petition in her individual name, her perceived need for protection from plaintiff stemmed from her performance of executive duties. Maintaining workplace and personal safety did not become a strictly personal matter merely because defendant's own safety was in focus. Defendant was thus entitled to immunity with respect to plaintiff's defamation claims.
Plaintiff also argues that the trial court made an improper finding of fact when it found that defendant filed the PPO petition in good faith. The GTLA does not impose any intent-based standard, such as requiring that the government official was "acting in good faith" or "not acting in bad faith." American Transmissions, 454 Mich at 140 n 5, abrogating Gracey v Wayne Co Clerk, 213 Mich App 412; 540 NW2d 710 (1995), to the extent that it imposed an intent factor. Therefore, the trial court's comment about defendant's good faith was irrelevant.
B. STATEMENTS IN JUDICIAL PROCEEDINGS
Plaintiff also argues that the trial court erred by concluding that defendant's statements in her PPO petition were privileged and could not give rise to a claim for defamation. In defamation actions, "[c]ertain statements are absolutely privileged." Oesterle v Wallace, 272 Mich App 260, 264; 725 NW2d 470 (2006). "An absolutely privileged communication is one for which no remedy is provided for damages in a defamation action because of the occasion on which the communication is made." Id. (quotation marks and citation omitted). "[A]bsolute privilege against a defamation action is limited to narrowly defined areas." Id. "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." Id. "[T]he privilege does not extend to slanderous expressions against counsel, parties, or witnesses, when the expressions have no relation to or bearing upon the issue or subject matter before the court." Id. (quotation marks and citation omitted). "Judicial proceedings may include any hearing before a tribunal or administrative board that performs a judicial function." Id. at 265 (quotation marks and citation omitted). "Further, immunity extends to every step in the proceeding and covers anything that may be said in relation to the matter at issue, including pleadings and affidavits." Id. (quotation marks and citation omitted).
Plaintiff argues that defendant's testimony and pleadings regarding the "Hey!!! What are you doing?" text message were not relevant to the PPO petition because the message was nonthreatening. "What a litigant considers to be pertinent or relevant is given much freedom, and the privilege is liberally construed as a matter of public policy 'so that participants in judicial proceedings may have relative freedom to express themselves without fear of retaliation.' " Lawrence, 314 Mich App at 217. Considered in context, the message was relevant to defendant's proof of grounds for granting a PPO. Defendant relied not just on the statement itself, but the context in which it was made in support of her petition for a PPO. Defendant stated in her petition and testimony that plaintiff sent the message while he was parked outside her office and staring at her through her office window. The statement and context could reasonably be construed as demanding defendant's attention to let her know that he was nearby and that he was surveilling her. Given plaintiff's hostility in their previous encounter, it could be inferred that plaintiff intended to invoke fear and anxiety in defendant. Regardless of plaintiff's disagreement concerning the significance of the statement, it was pertinent and relevant to defendant's belief that it supported her request for a PPO. The statements concerning the message are therefore privileged.
Plaintiff does not address Oesterle, 272 Mich App 260. He argues that defendant's privilege defense is without merit because it depends on principles stated in Hartung v Shaw, 130 Mich 177; 89 NW 701 (1902), and Sanders v Leeson Air Conditioning Corp, 362 Mich 692; 108 NW2d 761 (1961), which, according to plaintiff, this Court rejected in Lawrence, 314 Mich App 203. However, Lawrence did not reject the general principles that statements in legal proceedings are privileged unless they are irrelevant to the proceedings. Instead, Lawrence rejected the defendant's narrow assertion "that statements are presumed relevant once it is established that they were made during the course of a judicial proceeding." Id. at 219. The Court held that this assertion related to "a muddy area in defamation law." The assertion was "not a rule of law," but a "quotation of the trial court's language in Sanders." Lawrence, 314 Mich App at 219. The Court in Lawrence stated that "[t]he Sanders Court never expressly endorsed the concept," which seemed to have its source in Hartung, 130 Mich 177. Lawrence, 314 Mich App at 219. This history is not pertinent to the instant analysis because defendant does not need to rely on a presumption that her statements about the text message were relevant. The text message statements were relevant considering the surrounding context provided by defendant because a reasonable person could construe the text message as threatening in that context.
C. AMENDMENT OF PLEADINGS
Plaintiff argues that he should be permitted to amend his complaint to resolve any deficiencies. When summary disposition is granted "based on subrule (C)(8), (9), (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." MCR 2.116(I)(5). Under MCR 2.118(A)(2), a trial court should freely grant leave to amend "when justice so requires." "A motion to amend ordinarily should be granted in the absence of any apparent or declared reason, such as undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of amendment." Cole v Ladbroke Racing Mich, Inc, 241 Mich App 1, 9-10; 614 NW2d 169 (2000). "An amendment is futile if it merely restates the allegations already made or adds allegations that still fail to state a claim." Yudashkin v Holden, 247 Mich App 642, 651; 637 NW2d 257 (2001) (quotation marks and citation omitted); MCR 2.116(I)(5).
Plaintiff was not entitled to amend the pleadings as a matter of right under MCR 2.116(I)(5) because the trial court granted summary disposition under MCR 2.116(C)(7). Nowacki v State Employees' Retirement Sys, 485 Mich 1037; 776 NW2d 911 (2010). Moreover, plaintiff never moved to amend his complaint in the trial court and he does not suggest a proposed amendment on appeal. The principles of governmental immunity and privilege of statements in judicial proceedings broadly shielded defendant from liability for statements she made in relation to her PPO petition. Plaintiff does not identify any facts he could plead in avoidance of these doctrines. Accordingly, plaintiff has not demonstrated that any amendment would not be futile.
IV. MALICIOUS PROSECUTION
Plaintiff next argues that the trial court erred by dismissing his claim for malicious prosecution because his complaint pleaded all the elements of such a claim. We disagree.
The elements of a claim for malicious prosecution vary according to whether the underlying action was civil or criminal in nature. A PPO proceeding is civil in nature. The elements that must be proved in a tort action for malicious prosecution in civil proceedings are: "(1) prior proceedings terminated in favor of the present plaintiff, (2) absence of probable cause for those proceedings, and (3) malice" described as "a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based." Friedman v Dozorc, 412 Mich 1, 48; 312 NW2d 585 (1981) (quotation marks and citations omitted). The plaintiff also must prove "special injury equivalent to a seizure of property as a result of the defendant's institution of civil proceedings." Id. at 38-39, 49. A "special injury" is an "injury to one's fame (as by a scandalous allegation), injury to one's person or liberty, and injury to one's property." Id. at 32-33. It must be an injury that would not necessarily occur in all lawsuits alleging similar causes of action. Barnard v Hartman, 130 Mich App 692, 695-696; 344 NW2d 53 (1983). "A loss of reputation may be a sufficiently unusual hardship to meet the special injury requirement if the injury is of a kind not ordinarily resulting from similar causes." Id. at 696. However, if the injury to plaintiff's reputation is not of an unusual nature, but rather of the same kind as that normally flowing from the maintenance of similar actions, the plaintiff is without a remedy." Id.
"A personal protection action is an independent action commenced by filing a petition with a court." MCR 3.701(A).
Plaintiff argues that he satisfied the special-injury requirement by pleading that defendant's wrongful allegations have harmed his career. He anticipates that defendant's accusations in the PPO action will impede his prospects of professional advancement in the narrow field of upper-level school administration. In substance, this argument raises loss of reputation as the special injury. However, this alleged reputational injury is "not of an unusual nature." It is "of the same kind as that normally flowing from the maintenance of similar actions." Barnard, 130 Mich App at 695-696. A reputation for intimidating conduct toward women and toward colleagues is not unusual for the subject of PPO actions. The trial court therefore properly granted summary disposition for defendant with respect to plaintiff's malicious prosecution claim.
V. ABUSE OF PROCESS
Finally, plaintiff argues that he properly pleaded a claim for abuse of process. Again, we disagree.
"Abuse of process is the wrongful use of the process of a court." Lawrence, 314 Mich App at 211 (quotation marks and citation omitted). "This action for the abuse of process lies for the improper use of process after it has been issued, not for maliciously causing it to issue." Id. (quotation marks and citation omitted). The plaintiff must prove "(1) an ulterior purpose and (2) an act in the use of process which is improper in the regular prosecution of the proceeding." Id. at 211-212 (quotation marks and citation omitted). "[T]he act must be something more than just the initiation of a lawsuit, and the ulterior purpose has to be something other than settling a suit." Id. "One way in which process is sometimes abused, is by making use of it to accomplish not the ostensible purpose for which it is taken out, but some other purpose for which it is an illegitimate and unlawful means." Id, quoting Cooley, The Law of Torts or the Wrongs Which Arise Independently of Contract (3d ed), p 356.
Plaintiff argues that he alleged a "corroborating act" demonstrating defendant's ulterior motive in filing the petition. He argues that he alleged that defendant filed the PPO petition to retaliate against him for filing the arbitration claim and to prevent him from speaking about her to the school board. He argues that defendant's timing in filing the petition supports these conclusions. We are not persuaded that these circumstances prove an improper use of proceedings by defendant. A PPO could have been tailored to avoid interfering with plaintiff's interest in pursuing an arbitration claim or addressing the school board. MCL 600.2950a(3) enumerates the actions that a trial court "may restrain or enjoin" a PPO respondent from doing.
Finally, plaintiff argues that if "the current law supports holding Appellee responsible for her actions," this Court should "reinstate his claims on the basis that there should be no legal protections afforded to a person who knowingly submits false information to a tribunal." Persons who commit perjury are subject to criminal prosecution under MCL 750.422, which provides a maximum sentence of life in prison if perjury is committed in a trial for a capital crime, and a maximum sentence of 15 years in all other cases. Plaintiff has not provided any authority for holding alleged perjurers accountable by means of a civil lawsuit by the subject of the alleged perjury. Moreover, there was no judicial finding that defendant falsified any of her allegations. In the PPO proceeding, the court did not find that defendant's allegations were false or not credible, but denied her petition because she failed to allege a second post-notice incident involving plaintiff.
Affirmed.
/s/ Brock A. Swartzle
/s/ Kathleen Jansen
/s/ Stephen L. Borrello