Cetera v. Mileto

• Docket Number: 356868
• Decision Date: 28 July 2022
• Citation: Cetera v. Mileto, 342 Mich.App. 441, 995 N.W.2d 838 (Mich. App. 2022)
• Parties: Ava CETERA, Julian Cetera, and Cetera Photography, LLC, Plaintiffs-Appellants, v. Lauren MILETO, Defendant-Appellee.
• Court: Court of Appeal of Michigan

342 Mich.App. 441

995 N.W.2d 838

Ava CETERA, Julian Cetera, and Cetera Photography, LLC, Plaintiffs-Appellants, v. Lauren MILETO, Defendant-Appellee.

No. 356868

Court of Appeals of Michigan.

Submitted July 12, 2022, at Lansing.

Decided July 28, 2022, at 9:05 a.m.

Fraser Trebilcock Davis & Dunlap, PC, Lansing (by Michael H. Perry ) for plaintiffs.

Thelma L. Forrest, Trenton, for defendant.

Before: Markey, P.J., and Boonstra and Riordan, JJ.

Markey, P.J. Plaintiffs, Ava Cetera, Julian Cetera, and Cetera Photography, LLC (collectively, Cetera), appeal by right the trial court's order granting summary disposition in favor of defendant, Lauren Mileto, pursuant to MCR 2.116(C)(8) and (10) in this lawsuit involving claims of defamation per se and false-light invasion of privacy (FLIOP). We affirm.

I. BACKGROUND

In the fall of 2019, Mileto was engaged to be married and was planning her wedding. The wedding was initially scheduled to take place in October 2020, and Mileto booked Cetera in November 2019 to be her wedding photographer. Mileto paid Cetera $2,120 for photography services that were to be provided for the planned October 2020 nuptials. The parties agreed that this payment was nonrefundable. During the summer of 2020, Mileto and her fiancé decided to postpone their wedding until October 2021 in light of the ongoing COVID-19 pandemic. On July 29, 2020, Mileto sent an e-mail to various vendors, including Cetera, informing them that the wedding had been postponed and inquiring whether they could provide their services on the new date. In this e-mail, Mileto explained why she still desired their services:

I wanted to contact you all because you are what make our wedding a dream wedding! We picked you as our vendors because you are the best at what you do, the kindest people, and we couldn't imagine not having you all at our celebration!

Cetera informed Mileto that it was not available to photograph the wedding on the new date. After some discussion of alternative dates that ultimately were not workable, the parties agreed to terminate their agreement, and Cetera refunded $704 to Mileto. Shortly thereafter, Mileto posted the following review of Cetera's services both on Facebook and on a website called "The Knot":

I would not recommend Cetera photography for any couples.

To begin, they don't list their prices and instead just ask what you're willing to pay and then tailor their price around that, which doesn't seem right to me.

Secondly, after booking them, I mentioned that I had a Pinterest board of poses that I'd love to share with them and they completely freaked out. They were so offended that I had looked at different photography ideas that we ended up having an hour discussion about it before the issue was resolved and I said they didn't have to take my Pinterest into consideration.

Thirdly, they asked us to review them before they provided us any services. They practically insisted we do it, continually asking me if it was done yet. That is actually why you see all their Facebook reviews that say people are excited to work with them, but most haven't yet.

Finally, we had to move our wedding because of COVID and that neither of our grandparents were comfortable coming this year (which is very important to us that they are there). When we expressed this to Ava and Julian [Cetera], they insisted that we should have it anyway because "that's what other people are doing." When we said it was a definite no and moving to next year, they offered us 2 slots they had available next year (at very random times of the year) of which we couldn't do either. I am in grad school and can only do weekends we have breaks. When we said we couldn't do those weekends, they told us since we were being inflexible and couldn't work with their dates, we didn't get any of our money back. Which was over $2,000. They were actually so rude to me that they made me cry on the phone.

Overall, they were very rude and unaccommodating. It doesn't seem like they want the best for you & want to get photos that YOU are happy with, they want what works for them. I think there are plenty of other photographers that are more willing to work with you for the same or a cheaper price. I would not recommend Cetera photography to anyone.

Ten days later, Cetera's attorney sent a letter to Mileto in which he requested that Mileto withdraw the "defamatory posts." Mileto edited the review to indicate that she had, in fact, received a partial refund, but Mileto otherwise refused to withdraw the posts. Cetera then sued Mileto, alleging counts of defamation per se, exemplary damages, and FLIOP. Subsequently, the trial court granted Mileto's motion for summary disposition under MCR 2.116(C)(8) and (10).

II. ANALYSIS

A. STANDARD OF REVIEW AND SUMMARY DISPOSITION PRINCIPLES

This Court reviews de novo a trial court's ruling on a motion for summary disposition. El-Khalil v. Oakwood Healthcare, Inc. , 504 Mich. 152, 159, 934 N.W.2d 665 (2019). We also review de novo questions concerning the interpretation and application of a statute. Estes v. Titus , 481 Mich. 573, 578-579, 751 N.W.2d 493 (2008). This Court likewise reviews de novo the issue whether a privilege exists in connection with a defamation claim. Prysak v. R.L. Polk Co. , 193 Mich.App. 1, 14-15, 483 N.W.2d 629 (1992).

MCR 2.116(C)(8) provides for summary disposition when a "party has failed to state a claim on which relief can be granted." A motion under Subrule (C)(8) tests the legal sufficiency of a complaint. Ass'n of Home Help Care Agencies v. Dep't of Health & Human Servs. , 334 Mich.App. 674, 684 n 4, 965 N.W.2d 707 (2020). A trial court is only permitted to consider the pleadings when deciding a motion under MCR 2.116(C)(8). Id. All of the factual allegations contained in the complaint must be accepted as true. Id. And if no factual development could possibly justify recovery, the trial court should grant the motion. Id.

MCR 2.116(C)(10) provides for summary disposition when, "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." A motion under Subrule (C)(10) tests the factual support for a party's cause of action. Ass'n of Home Help Care Agencies , 334 Mich.App. at 684 n 4, 965 N.W.2d 707. When judgment is sought on the basis of MCR 2.116(C)(10), "[a]ffidavits, depositions, admissions, or other documentary evidence ... are required...." MCR 2.116(G)(3)(b). "When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial." MCR 2.116(G)(4).

A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the pleadings, affidavits, and other documentary evidence, when viewed in a light most favorable to the nonmoving party, demonstrate that there is no genuine issue with respect to any material fact. Ass'n of Home Help Care Agencies , 334 Mich.App. at 684 n 4, 965 N.W.2d 707. "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v. Gen. Motors Corp. , 469 Mich. 177, 183, 665 N.W.2d 468 (2003). A trial court may not assess credibility, weigh the evidence, or resolve factual disputes, and when material evidence conflicts, it is not appropriate for the court to grant the motion for summary disposition. Ass'n of Home Help Care Agencies , 334 Mich.App. at 684 n 4, 965 N.W.2d 707. "Like the trial court's inquiry, when an appellate court reviews a motion for summary disposition, it makes all legitimate inferences in favor of the nonmoving party." Skinner v Square D Co , 445 Mich. 153, 162, 516 N.W.2d 475 (1994). "Affidavits, depositions, admissions, and documentary evidence offered in support of or in opposition to a motion ... shall only be considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion." MCR 2.116(G)(6) ; see also Maiden v. Rozwood , 461 Mich. 109, 121, 597 N.W.2d 817 (1999) (providing that a court may only consider substantively admissible evidence actually proffered by the parties when ruling on a motion).

B. STATUTORY CONSTRUCTION

In Slis v. Michigan , 332 Mich.App. 312, 335-336, 956 N.W.2d 569 (2020), this Court recited the well-established principles governing statutory construction, observing as follows:

This Court's role in construing statutory language is to discern and ascertain the intent of the Legislature, which may reasonably be inferred from the words in the statute. We must focus our analysis on the express language of the statute because it offers the most reliable evidence of legislative intent. When statutory language is clear and unambiguous, we must apply the statute as written. A court is not permitted to read anything into an unambiguous statute that is not within the manifest intent of the Legislature. Furthermore, this Court may not rewrite the plain statutory language or substitute its own policy decisions for those decisions already made by the Legislature. [Citations omitted.]

C. DISCUSSION OF DEFAMATION PER SE AND RESOLUTION

In an extensive written opinion, the trial court summarily dismissed Cetera's claim of defamation per se on the basis that Mileto's various statements within her postings were either opinion, true, or not defamatory. The court also ruled as a matter of law that Mileto did not act with malice; therefore, Mileto was shielded from liability by qualified immunity. The trial court further concluded that there could be no defamation per se because Mileto's statements did not accuse Cetera of committing a crime or impute a...