745 F.2d 1006 (6th Cir. 1984), 82-1103, Bichler v. Union Bank & Trust Co. of Grand Rapids

Docket Nº:82-1103.
Citation:745 F.2d 1006
Party Name:Richard BICHLER, Plaintiff-Appellant, v. UNION BANK AND TRUST COMPANY OF GRAND RAPIDS, et al., Defendants-Appellees.
Case Date:September 17, 1984
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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745 F.2d 1006 (6th Cir. 1984)

Richard BICHLER, Plaintiff-Appellant,

v.

UNION BANK AND TRUST COMPANY OF GRAND RAPIDS, et al.,

Defendants-Appellees.

No. 82-1103.

United States Court of Appeals, Sixth Circuit

September 17, 1984

Argued Jan. 16, 1984.

As Amended Oct. 30, 1984.

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

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

Before LIVELY, Chief Judge; EDWARDS, ENGEL, KEITH, MERRITT, MARTIN, JONES, CONTIE, KRUPANSKY and WELLFORD, Circuit Judges; [*] and WEICK, Senior Circuit Judge.

LIVELY, Chief Judge.

This is an appeal by the plaintiff from summary judgment in favor of the defendant WZZM-TV of Grand Rapids, Michigan, in an action claiming that a broadcast by the defendant invaded the plaintiff's right of privacy. Jurisdiction is based on diversity of citizenship, and the substantive law of Michigan controls. This appeal was originally heard by a panel of the court and its opinion, reported at 715 F.2d 1059 (6th Cir.1983), was vacated and rehearing en banc was granted in an order reported at 718 F.2d 802 (6th Cir.1983).

I.

The plaintiff Bichler was president and the principal shareholder of Rebel Promotions, Inc., a Michigan corporation which operated the Thunderbird Dinner Theater in Alpine Township, near Grand Rapids, Michigan. As general manager of the theater Bichler booked various productions, which were advertised in the local press. The productions were also reviewed, and news stories were run about the theater in

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The Grand Rapids Press, the only daily newspaper in the area.

Bichler hired Jerry Moore and his production company to stage several plays at the theater, including "Hair" and "Jesus Christ Superstar." Moore and Bichler had a dispute after which Bichler stopped payment on a $9,000 check to Moore. Moore then stopped work on "Hair" which was in production and called a press conference to announce the cancellation. The press conference was held at a motel where the cast was staying. In the presence of press representatives and with cameras "rolling" Moore announced to a group of cast members that the current production would cease and that the next scheduled one ("Jesus Christ Superstar") would not begin, at least not on schedule.

James Rummel, news anchorman for WZZM-TV, attended the conference. After it was over he interviewed Moore, some cast members and the motel manager. Moore told Rummel that he had not been paid for the current production and that he planned to sue Bichler for breach of contract. Members of the cast confirmed that they had not been paid and that the cancellation of the production created hardships for them. Moore told Rummel that he was only a middleman; that the money came from Bichler and that Bichler was responsible for paying the salaries of the cast. The "innkeeper" told Rummel that payment for the rooms of the cast was in arrears and that this was also Bichler's obligation.

The press conference and interviews took place between 3 and 5 p.m. on January 21, 1976. Rummel immediately attempted to reach Bichler by calling the theater, his home and a listed place of business, all without success. Later in the evening Rummel drove to the theater with a cameraman and found the building dark and locked. Rummel then returned to the WZZM studio and prepared for the 11 p.m. newscast. David Kowalczyk and his attorney arrived at the studio before air time and attempted to dissuade Rummel from using the story about the theater. Kowalczyk described himself as a "silent partner" in the dinner theater. He had advanced money to Bichler and was worried about the effect the story would have on the ability of the theater to continue operations. He had learned from Moore that WZZM planned to include the story in its newscast. Kowalczyk did not tell Rummel that the information from Moore was false. The gist of his and his attorney's representation to Rummel was that the story "could be the straw that broke the camel's back." Kowalczyk wanted the story delayed for a day or two in order to locate Bichler and get his version of the matter. Rummel refused this request, sought as a personal favor, advising Kowalczyk that the story would run.

The story was broadcast as a segment of the 11 o'clock news. The transcript of the broadcast is set forth in its entirety:

"A report on the closing of the Thunderbird Dinner Theater....

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

With no advance warning .... the Thunderbird Dinner Theater 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 Theater has been having financial problems in recent weeks as has it's [sic] 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 theater's next scheduled production of 'Jesus Christ Superstar.' Most of

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them are without money and without plane tickets home ... all of which Bichler had contracted for.

Bichler was unavailable for comment today....

Producer Moore will file a lawsuit against him tomorrow charging breach of contract....

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

According to Moore, more than 3000 dollars in advance tickets had been sold to 'Jesus Christ Superstar' ... slated to open January 28th"

Rummel attempted to locate Bichler the following day, again without success. He also checked the public records and found outstanding claims against Bichler and his business enterprises. The story was "repackaged" and broadcast again at 5:30 that evening.

The day following the second broadcast a local bank called its loan with the theater and repossessed personal property covered by security agreements from the theater premises. Other creditors removed equipment which had not been paid for and the building was largely stripped of its contents within a few weeks. The theater never reopened.

II.

A.

In his complaint Bichler charged WZZM with defaming him "by defaming the business entity, the Thunderbird Dinner Theater...." The defamation charged in the complaint consisted of opening the program with a reference to "a cooked chicken" (the Thunder Chicken Rock Theater was an adjunct enterprise), relying on information from Jerry Moore without checking out the facts and making the statement that the dinner theater had "in fact terminated its business for good, which statement was absolutely false and fallacious." An action for libel was barred by limitations and, as developed in affidavits, depositions and other discovery Bichler's claim was for invasion of privacy consisting of broadcasting embarrassing private facts about him and placing him in a false light in the public eye. The district court identified the portions of the broadcasts objected to as follows:

The alleged disclosure of private facts complained of by plaintiff contained in the broadcast consists of the following:

(1) "The Thunder Bird Theater 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 following statements are alleged to constitute publicity holding out plaintiff in a false light:

(1) that plaintiff Bichler was having financial difficulties;

(2) that the closing left ... about 40 members of a New York based production company and advance ticket holders in the lurch.

(3) ... Most of them are without money and without plane tickets home ... all of which Bichler had contracted for.

(4) ... More than $3,000 in advance tickets had been sold to Jesus Christ Superstar ... slated to open January 28th. (Inferring, according to plaintiff that these people also would be "waiting in the lurch for their money back.")

(5) Thunder Bird was a cooked chicken, 1 and the place was closed.

After considering the voluminous record compiled during the three and one-half years between the filing of the complaint and its decision, the district court concluded that the plaintiff had not raised a triable issue on either of his claims. The district court determined that the closing of the

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only dinner theater in Western Michigan was a newsworthy event, as had been its opening and continued operations. Exhibits were filed which showed substantial media coverage of those events. Bichler's financial condition as the reported "owner" and "manager" of the theater was closely related to the financial condition of the theater and the story of its closing. Concerning the "private facts" claim the district court concluded that the reference to Bichler's financial condition was neither highly offensive nor made "for its own sake," and was privileged under Michigan law.

The district court made alternative findings with respect to the "false light" claim. It concluded that Bichler was a public figure at least in the context of the theater business and that WZZM could not be held liable under Michigan law in the absence of a showing of actual malice. In the alternative the court found that even if Bichler were found to be a private person he...

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