Opinion
357675
09-22-2021
Matthew Lavender v. Benham R Wrigley, Jr
LC No. 21-001890-NZ
David H. Sawyer Mark T. Boonstra JudgesORDER
Jane M. Beckering Presiding Judge
Pursuant to MCR 7.205(E)(2), in lieu of granting the application for leave to appeal, the Court PEREMPTORILY REVERSES the trial court's decision to deny summary disposition, VACATES the June 30, 2021 opinion and order, and REMANDS for entry of an order granting defendant's motion for summary disposition under MCR 2.116(C)(8). Even though third-party Luke Bagnall did not retain defendant Benham R. Wrigley Jr.'s services, the duties owed by an attorney to a prospective client are sufficient to give rise to the shared-interest privilege. See MRPC 1.6, Comment; MRPC 1.0; In re Adams, 494 Mich. 162, 174-175 n 12; 833 N.W.2d 897 (2013). See also Rosenboom v Vanek, 182 Mich.App. 113, 117; 451 N.W.2d 520 (1989) (discussing the shared-interest privilege). Plaintiffs' conclusory allegation of actual malice does not overcome the qualified, shared-interest privilege. See Prysak v RL Polk Co, 193 Mich.App. 1, 15; 483 N.W.2d 629 (1992). Moreover, given the context of the statements, which likened an investment with plaintiff Matthew Lavender to "gambling," defendant's use of the term "crook" to describe plaintiff cannot, as a matter of law, be construed as defamatory. See Hope-Jackson v Washington, 311 Mich.App. 602, 622; 877 N.W.2d 736 (2015); Ireland v Edwards, 230 Mich.App. 607, 619; 584 N.W.2d 632 (1998). Indeed, it is apparent from the context of the purported statement that defendant compared a potential investment with Lavender to a legal, but risky or improvident, activity. The context does not implicate Lavender in a specific crime or a particular illegal activity and cannot be reasonably understood as being defamatory. Cf Hodgins v Times Herald Co, 169 Mich.App. 245, 254; 425 N.W.2d 522 (1988) (holding that the statement that the plaintiff sold dogs for "dog fights," which was a specific crime under state and federal law, "move[d] across the line dividing strongly worded opinion from accusation of crime" and was capable of being defamatory). This order has immediate effect. MCR 7.215(F)(2). We do not retain jurisdiction.