Bichler v. Union Bank and Trust Co.

• Decision Date: 06 October 1983
• Docket Number: No. 82-1103,82-1103
• Parties: 9 Media L. Rep. 2033 Richard BICHLER, Plaintiff-Appellant, v. UNION BANK AND TRUST CO., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1059

715 F.2d 1059

9 Media L. Rep. 2033

Richard BICHLER, Plaintiff-Appellant, v. UNION BANK AND TRUST CO., et al., Defendants-Appellees.

No. 82-1103.

United States Court of Appeals, Sixth Circuit.

Argued April 29, 1983.

Decided Aug. 17, 1983.

Rehearing Granted Oct. 6, 1983.

Wilson M. Jackson, Jackson & Laska, Dorsi Bosca, Warren, Mich. (argued), for plaintiff-appellant.

J.A. Cragwall, Jr., Warner, Norcross & Judd, Richard Bandstra, Grand Rapids, Mich. (argued), Grant J. Gruel, Cholette Perkins & Buchanan, Grand Rapids, Mich., for defendants-appellees.

Before JONES and WELLFORD, Circuit Judges, and WEICK, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

Richard Bichler, appellant and owner of a now defunct dinner theatre in Grand Rapids, Michigan, seeks reversal of a grant of summary judgment to defendant television station in this diversity action. Bichler contends (1) that the district court applied the wrong burden of proof by (a) finding that he was a public figure under the doctrine established in Sullivan v. New York Times, and (b) by holding that the events which were the basis of the controverted story were a "public controversy" under Michigan law; and (2) that in any event, summary judgment was inappropriate on the facts of this case. We believe that the trial court erred in granting summary judgment and reverse.

I. FACTS

The events which surround the libel action which is the crux of this suit involve the Thunderbird Dinner Theatre. Richard Bichler, the plaintiff-appellant, was the principal stockholder and President of Rebel Promotions, the company which owned and operated the theatre. In addition, he was general manager of the theatre, selecting the shows, scheduling events and running it day to day. Bichler hired Jerry Moore's Playmore Productions to secure and present stage plays in the theatre. Under the contract, gross costs, travel expenses and lodging for the cast were to be paid by Moore.

The events here were precipitated when, on January 21, 1976, the theatre gave Jerry Moore a check for $9,000 for the services of the cast and for their expenses for the previous week. At about that time, a garnishment was served upon Bichler for indebtedness of Moore and his Playmore Production Company. That garnishment was pursuant to a judgment rendered in Flint, Michigan. Further, Bichler evidently became aware that certain of Moore's invoices submitted for payment were not true invoices.

Bichler decided to place a stop order on the $9,000 check. Moore was notified and the ensuing discussion led to the cessation of the present production of "Hair" at the theatre. The disgruntled Moore called a news conference at the Presidential Inn in Grand Rapids on January 26, 1976. WZZM-TV, with whom Moore had communicated, was there.

According to the deposition of WZZM's newsman, James Rummel, the news conference began between 3:00 p.m. and 5:00 p.m. and there were several members of the cast, other than Moore, present. Moore told his staff in front of the camera that the present production would cease and that the next production would not begin on schedule. He stated that the show would not continue because the actors had not been paid. He did not contend that the theatre was closing down.

Later that evening, around 9:30, David Kowalczyk, a part owner of Rebel Productions (and thus business partner with Bichler), was informed that WZZM was to run a story about the theatre on the 11:00 newscast. He and his attorney went to the station to try to delay broadcast. There is some dispute about the content of that discussion. The appellant claims that Rummel was told that Moore was a known liar and that there would be a severe negative impact on the theatre if the story was aired. Rummel was allegedly asked to, at minimum, postpone the broadcast until Bichler's views could be ascertained. The defendant states that all that was said was that Kowalczyk wished that they would delay the story, as a favor, until he could check it out. Rummel was apparently in a hurry to broadcast and declined to postpone the story. ¹

The story ran on the 11:00 news as follows:

A report on the closing of the Thunderbird Dinner Theatre ....

And West Michigan's only dinner theatre locked its doors today ... leaving a production company wondering what to do next ....

With no advance warning ... the Thunderbird Dinner Theatre locked its doors today ... leaving about 40 members of a New York based production company and advance ticket holders in the lurch.

When we got word of the closing, we drove out to the Thunderbird located north of Comstock Park on Alpine Avenue. All we found were locked doors and an empty parking lot.

The news of the closing was broken to the members of the current cast of "Hair" ... by the show's producer, Jerry Moore.

The Thunderbird Theatre has been having financial problems in recent weeks as has its owner, Dick Bichler.

Today, it was Bichler who was catching the blame and the wrath of the cast.

The problem now becomes one of what to do for the members of the current production of "Hair" ... and for the cast of the Theatre's next scheduled production, "Jesus Christ, Superstar." Most of them are without money and without plane tickets home ... all of which Bichler had contracted for.

Bichler was unavailable for comment today ....

And there might be a few advance reservation holders who will be wanting their money back.

According to Moore, more than $3,000 in advance tickets has been sold to "Jesus Christ, Superstar" ... to open January 28th.

There is some dispute as to whether the logo "cooked chicken" was used as a preface to the story. The appellant contends that it was, the defendant-appellee contends that it was not and the district court found that it was nowhere in the record.

At the time the story was aired, the theatre had not closed. In fact, Bichler had merely halted the performance of "Hair" for reasons related to Moore's financial status and professional activities. In addition, the broadcast misstated the terms of the contract between the parties. Accordingly, it is obvious from the face of the broadcast text that it contained misstatements regarding the fact of the theatre's closing and the reasons for which the production of "Hair" was cancelled.

Within a day or two after the story was reported, a local bank called in its loan and repossessed items of personal property all of which were essential to the financial viability of the theatre. The theatre was then forced to permanently close its doors. This is the source of the present suit.

The evidence in the record suggests that James Rummel took several steps before the story aired. He interviewed Moore at the Presidential Inn, tried to contact Bichler at his home and at the theatre, went to the theatre, found the doors locked, and spoke with Kowalczyk. The next day, he checked the public records which showed that there were law suits against Bichler and some liens against Bichler's assets.

Included in the record in this case are 27 articles which were published in the Grand Rapids Press over the span of ten months after the theatre opened. Richard Bichler is mentioned in 14 of them, only ten have quotes from him. In addition, the articles are, on the whole, reviews of plays or statements about future productions. Bichler's private life is not mentioned to any degree in these articles. The theme of the articles show that Bichler, acting as manager of the theatre, informed the press about upcoming events and past successes and failures. Only after the incidents involved in this suit did Bichler comment on any other matters.

II. DISPOSITION BELOW

The complaint filed in this diversity case alleged four causes of action arising out of the news report and the subsequent closing of the theatre. Two of the causes were barred by the Michigan statute of limitations, but two survived. The live issues included an invasion of privacy theory based on publicity given to a private life and publicly placing a person in false light. The underlying contention is that the broadcast invaded Bichler's privacy by discussing and/or implying that his financial affairs were not in order and that he had caused the cast to be without money and plane tickets home. Further, the story suggested that he would be unable to pay the advance ticketholders for the tickets held for the cancelled shows. The complainant also alleges that the story inaccurately reported that the theatre was closing when, in fact, only the play was closing.

Upon summary judgment motion filed by WZZM, the trial court granted the motion and dismissed the complaint. The court held that Bichler was a public person under Gertz v. Robert Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), and, as such, he had to show actual malice before succeeding in his false light claim. The evidence, it held, did not put a material fact in issue as to malice. In the alternative, the district court held that the Michigan "public controversy" doctrine would require actual malice even if Bichler was deemed a private person under the Gertz standard. Because we believe that the district court read the public figure doctrine too broadly and because we find that it failed to properly assess the need for actual malice under Michigan law, we reverse.

III. OVERVIEW

Before moving to the discrete issues in this case, it is important to set out the analytic structure of the privilege issues. The plaintiff has alleged that there has been a violation of Michigan law with regard to publication of private information and placing a private individual in false light. The television station contends that its publication is somehow privileged. The problem in these cases is in determining where the source of that privilege lies. In fact, there are two sources: the Constitution and state law.

The First Amendment has been read to impose limits upon state laws dealing with libel, slander and other...