Annabel v. C. J. Link Lumber Co.

• Decision Date: 11 June 1982
• Docket Number: Docket No. 53660
• Citation: 320 N.W.2d 64,115 Mich.App. 116
• Parties: Robert L. ANNABEL and Angel R. Annabel, his wife, Plaintiffs-Appellants, v. C. J. LINK LUMBER COMPANY; The Estate of Cyrus J. Link; Lumber Drivers, Warehousemen and Helpers Local 458; and James R. Havermahl, individually and as the business agent for Local 458, Defendants-Appellees. 115 Mich.App. 116, 320 N.W.2d 64
• Court: Court of Appeal of Michigan — District of US

Page 64

320 N.W.2d 64

Robert L. ANNABEL and Angel R. Annabel, his wife, Plaintiffs-Appellants, v. C. J. LINK LUMBER COMPANY; The Estate of Cyrus J. Link;

Lumber Drivers, Warehousemen and Helpers Local 458; and

James R. Havermahl, individually and as the business agent

for Local 458, Defendants-Appellees.

Docket No. 53660.

115 Mich.App. 116, 320 N.W.2d 64

Court of Appeals of Michigan.

Submitted Jan. 7, 1982.

Decided April 7, 1982.

Released for Publication June 11, 1982.

[115 MICHAPP 118] David Melkus, Flint, for plaintiffs-appellants.

Butzel, Long, Gust, Klein & Van Zile by John P. Hancock, Jr., Detroit, for C. J. Link Lumber Co. and the estate of Cyrus J. Link.

Hoffa, Chodak & Robiner by Ted J. Cwiek, Detroit, for defendants-appellees Lumber Drivers, Warehousemen and Helpers Local 458.

Before BASHARA, P. J., T. M. BURNS and ALLEN, JJ.

PER CURIAM.

Plaintiffs appeal as of right the dismissal of their tort actions for defamation against defendants C. J. Link Lumber Company and the estate of Cyrus J. Link and their actions for intentional infliction of emotional distress against those same defendants and defendants Lumber Drivers, Warehousemen and Helpers Local 458 and James R. Havermahl. Pursuant to the provisions of GCR 1963, 116.1(5), the lower court granted motions for accelerated judgment against plaintiff on September 8, 1980. Plaintiffs' defamation action was found to be barred, in part, by the statute of limitations and, in part, because certain communications allegedly made by defendants were absolutely privileged. Plaintiffs' actions for intentional infliction of mental distress were found to be barred by the doctrine of res judicata.

The record establishes that plaintiff Robert Annabel was employed as a truck driver by the defendant lumber company from February 13, 1969, until November 4, 1975. On the latter date, he was discharged because of alleged theft or [115 MICHAPP 119] dishonesty during work. The president of the defendant company, Cyrus J. Link, notified the defendant union of plaintiff Annabel's discharge, as was required by a collective bargaining agreement, in two letters dated November 4 and 6, 1975.

Plaintiff filed a grievance with his union and a hearing was held on November 25, 1975. The defendant lumber company was represented at this hearing by Cyrus Link, while plaintiff was represented by defendant Havermahl. Initially, the grievance committee voted to reverse plaintiff Annabel's discharge; however, after consideration of evidence received after the hearing, it reversed itself and sustained the discharge.

On October 27, 1976, plaintiffs filed a complaint in Federal District Court against the union, the company, Havermahl and Link. The first count of plaintiffs' six-count complaint charged the union and the company with breach of contract. Ancillary claims of malice, gross negligence, bad faith and dishonesty were asserted against all defendants in this count. Count two of the complaint alleged a cause of action against the union and Havermahl for breach of their duty to fairly represent plaintiff Annabel. The third count alleged a conspiracy on behalf of all defendants to deprive Annabel of his legal rights. In count four of the complaint, plaintiffs alleged that the company and Link wrongfully discharged Annabel in bad faith and that this action was defamatory and caused mental and emotional distress. The complaint's fifth count averred that the company's and Link's discharge of Annabel was based upon accusations that they knew to be false. Plaintiffs claimed that the subsequent publications of these false accusations defamed them. Finally, the sixth count of plaintiffs' federal complaint alleged causes of action[115 MICHAPP 120] for emotional and mental distress against all defendants.

On May 30, 1978, the first four counts of plaintiffs' federal complaint were summarily dismissed with prejudice. The remaining two counts, which were based on state law, were dismissed by the federal court without prejudice.

On July 25, 1978, plaintiffs filed the present complaint in the circuit court. In this complaint, plaintiffs alleged a cause of action in defamation against the defendant company and Cyrus Link and an action for intentional infliction of mental distress against all four defendants. Following a hearing on May 19, 1980, the trial judge issued a written opinion on August 14, 1980, in which he granted defendants' motions for accelerated and summary judgments. A formal order, incorporating the judge's findings of fact and conclusions of law, was entered on September 8, 1980. Plaintiffs now appeal.

Plaintiffs first argue that the trial judge erred in ruling that the statutory period of limitation had run on their defamation claims. They note that due to a defect in the federal court order of May 30, 1978, all of their federal causes of action were not adjudicated. It was not until July 9, 1980, that their federal claims were dismissed in their entirety. Thus, plaintiffs contend that the statute of limitations on their defamation actions was tolled until this latter date. If so, their July 25, 1978, filing of the instant action in the Macomb County Circuit Court was timely.

Under the provisions of M.C.L. Sec. 600.5856; M.S.A. Sec. 27A.5856, the period of limitations on a cause of action is tolled during the time a prior suit is pending between the parties if the prior action is not adjudicated on its merits. Meda v. City of [115 MICHAPP 121] Howell, 110 Mich.App. 179, 312 N.W.2d 202 (1981). This is true even if the court of original filing lacked subject matter jurisdiction over the controversy. Id. See also Kiluma v. Wayne State University, 72 Mich.App. 446, 250 N.W.2d 81 (1976).

The statute of limitations on plaintiffs' state claims in their federal suit was tolled during the pendency of that action even though these claims were not based on federal law. The dispositive question is whether plaintiffs' federal action was dismissed on May 30, 1978, or whether it was dismissed on July 9, 1980. If it was dismissed on the latter date, then the period of limitation did not run on plaintiffs' actions for defamation inasmuch as their complaint was filed in the circuit court on July 25, 1978.

The defect in the federal court's May 30, 1978, order was that it failed to adjudicate the rights and liabilities of all defendants in the federal suit. Specifically, that order failed to dismiss plaintiffs' action against ...