Deitz v. Wometco West Michigan TV

• Citation: 160 Mich.App. 367,407 N.W.2d 649
• Decision Date: 08 July 1987
• Docket Number: Docket No. 85102
• Parties: , 14 Media L. Rep. 1629 Calvin F. DEITZ, individually and as assignee of Brock-Jensen Real Estate, Inc., a Michigan corporation, formerly Cal Deitz Real Estate, Inc., Plaintiff-Appellant, v. WOMETCO WEST MICHIGAN TV, Defendant-Appellee.
• Court: Court of Appeal of Michigan (US)

Page 649

407 N.W.2d 649

160 Mich.App. 367, 14 Media L. Rep. 1629

Calvin F. DEITZ, individually and as assignee of

Brock-Jensen Real Estate, Inc., a Michigan

corporation, formerly Cal Deitz Real

Estate, Inc., Plaintiff-Appellant, v. WOMETCO WEST MICHIGAN TV, Defendant-Appellee.

Docket No. 85102.

Court of Appeals of Michigan.

Submitted Aug. 5, 1986.

Decided May 19, 1987.

Released for Publication July 8, 1987.

Parmenter, Forsythe, Rude, Van Epps, Briggs & Fauri by Arthur M. Rude, Muskegon, for plaintiff-appellant.

Warner, Norcross & Judd by Roger M. Clark and J.A. Cragwall, Jr., Grand Rapids, for defendant-appellee.

Before HOOD, P.J., and HOLBROOK and PETERSON ^*, JJ.

HOOD, Presiding Judge.

Plaintiff appeals as of right from a circuit court order granting defendant television station's motion for summary judgment on plaintiff's defamation complaint for libel.

Plaintiff owned a real estate business in Newaygo County consisting of five offices throughout the county and seventy salespersons. On November 3 through 7, and 10 through 14, 1980, defendant broadcast a ten-part series entitled "King of Newaygo," during its newscasts, about plaintiff's alleged influence over Newaygo County prosecutors, police and judges. The series was broadcast by Mark W. Lagerkvist and Jim Riekse. The defendant indicated that the series was the culmination of months of investigation, interviews, and review of documents. When defendant failed to retract the broadcasts after plaintiff's request that it do so, plaintiff initiated the instant suit.

Before the broadcasts were aired, plaintiff assaulted defendant's agents twice when defendant's agents tried to interview him. In one assault, plaintiff was aided by his brother. Both assaults were recorded by defendant. Plaintiff was subsequently convicted of assault and battery in both cases, and spent three days in jail. The assault by plaintiff and his brother was shown eighteen times during defendant's newscasts and thirty-one times for promotional purposes. Plaintiff's attempt to run over defendant's agent was also shown twelve times during defendant's newscasts, but was not shown for promotional purposes.

The common allegations of plaintiff's first amended complaint alleged that plaintiff was defamed by the following statements which plaintiff claimed defendant broadcast as facts and not as opinion:

"(a) Deitz, a self-proclaimed millionaire, dominates more than just real estate. During the past decade, Deitz has had a grip on the criminal justice system in Newaygo County.

"(b) Judges, prosecutors, and police have been compromised through gifts, favors, and business deals by Mr. Deitz.

"(c) The officials profit from Deitz's wealth; he benefits through their power and prestige of office".

"(d) Mr. Deitz has spun an uncanny web of influence in Newaygo County through gifts, favors, and deals with local officials.

"(e) Why do public officials get involved with Newaygo real estate king, Cal Deitz? In one word, money.

"(f) The apparent loser is criminal justice in Newaygo County.

"(g) Deitz scoffs at the law." ¹

In count one of plaintiff's seven-count first amended complaint, plaintiff alleged that he was a private person and that the published matter was a matter of private concern, made public only because of defendant's broadcast, and thus that the statements were libel per se. In count two, plaintiff alleged that, in the alternative, he was a private person and that the published matter was a matter of public concern, but that defendant lost its qualified privilege through negligence and gross negligence. In count three, plaintiff alleged that, in the alternative, he was a public figure and that the published matter was a matter of public concern, but that defendant lost its qualified privilege by abusing the privilege and failing to meet the qualifications of the privilege by intentional conduct. ² In counts four through seven, plaintiff alleged invasion of privacy, negligent infliction of emotional distress, intentional infliction of emotional distress, and intentional interference with business relationships.

On September 2, 1983, defendant moved for partial summary judgment under GCR 1963, 117.2(1), now MCR 2.116(C)(8), alleging that most of plaintiff's first amended complaint failed to state a claim upon which relief could be granted because it failed to allege actual malice. On April 6, 1984 the court ruled that plaintiff was a private person, but that the published matter was a matter of public concern, as it concerned the functioning of public officials in their official capacities. ³ The court found that defendant thus had a qualified privilege to publish the material, and that to recover plaintiff had to prove that defendant acted with actual malice, i.e., publishing a statement it knew was false or in reckless disregard for its truth or falsity. This is the constitutional malice standard articulated in New York Times v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964). The court granted defendant's motion as to all counts of plaintiff's complaint except three paragraphs of count three, in which the court felt plaintiff satisfactorily alleged that defendant acted with actual malice. The court found that summary judgment was proper as to count one since the published matter was of public, not private, concern. The court found that as to count two, and the remainder of count three, plaintiff merely alleged negligence. As to the counts for invasion of privacy, negligent infliction of emotional distress, intentional infliction of emotional distress, and intentional interference with business relationships, the court granted summary judgment as to them since the court found these counts to be an attempt to circumvent the actual malice requirement.

On April 24, 1984, defendant filed its second motion for summary judgment, under GCR 1963, 117.2(1) and (3), now MCR 2.116(C)(8) and (10), as to the remaining subparagraphs of count three of plaintiff's complaint. On May 7, 1984, the court partially granted the motion. The court ruled that the seven statements set forth in the common allegations of plaintiff's complaint were opinions, not factual statements, and to the extent supported by disclosed true or privileged statements of facts, were not actionable. The court found all the opinions were supported by disclosed facts in the broadcasts except the opinion that judges had been compromised through gifts, favors, and business deals by plaintiff, and that judges profit from plaintiff's wealth. The court found that as to those two opinions, there was a genuine issue of a material fact as to whether they were made with actual malice. However, on March 22, 1985, in response to defendant's motion for reconsideration in which defendant submitted additional affidavits, the court found that there was no genuine issue of material fact that defendant did not act with actual malice in broadcasting those opinions. Thus, the court granted defendant's motion for summary judgment in totality, dismissing plaintiff's complaint.

On appeal, plaintiff first argues that, in an action for defamation involving a private person and a matter of public concern, the common-law definition of malice (ill will or spite), and not the constitutional definition of malice (knowledge of falsity or reckless disregard for the truth or falsity) is the applicable standard for determining liability. We need not now consider this issue, however, as the issue has been superseded by the Michigan Supreme Court's decision in Rouch v. Enquirer & News of Battle Creek, 427 Mich. 157, 398 N.W.2d 245 (1986). In Rouch, the Court held that, in a defamation case involving a private plaintiff and a matter of public concern, there is no qualified public-interest privilege whereby the plaintiff must prove actual malice. Rather, the negligence standard adopted in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), applies. Rouch, supra, 427 Mich. at p. 187, 398 N.W.2d 245. Thus, in determining whether plaintiff's complaint could survive summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8), plaintiff's complaint should have been scrutinized to see whether it alleged negligence, not actual malice. Under this scrutiny, count two, rather than count three, would have survived. Count two alleged negligence and gross negligence, while count three alleged intentional conduct; thus, count two should have survived. However, this does not mean that summary judgment pursuant to GCR 1963, 117.2(3), now MCR 2.116(C)(10), could not have been granted. In Rouch, the Court stated that other Michigan common-law privileges, such as the "fair-comment" privilege, were not affected by the decision. Rouch, supra, p. 180, n. 13, 398 N.W.2d 245. Thus, if defendant's statements in its broadcasts were "fair comment," summary judgment was still proper.

The fair comment rule is set out in 1 Harper & James, Torts, Sec. 5.28, p. 456:

"The principle of 'fair comment' affords legal immunity for the honest expression of opinion on matters of legitimate public interest when based upon a true or privileged statement of fact."

3 Restatement Torts, 2d, Sec. 566, p 170 describes the rule thusly:

"A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion."

The fair comment rule is based on the premise emphasized in Gertz, supra, 418 U.S. at p. 340, 94 S.Ct. at p. 3007:

"Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas."

The trial court in the instant case correctly acknowledged the application of the rule. The court stated:

"So long as opinions and conclusions...