Colista v. Thomas

• Decision Date: 06 September 2000
• Docket Number: Docket No. 208921.
• Citation: Colista v. Thomas, 616 N.W.2d 249, 241 Mich.App. 529 (Mich. App. 2000)
• Parties: F. Philip COLISTA, Plaintiff-Appellee, v. Philip J. THOMAS, Defendant-Appellant.
• Court: Court of Appeal of Michigan

616 N.W.2d 249

241 Mich. App. 529

F. Philip COLISTA, Plaintiff-Appellee, v.Philip J. THOMAS, Defendant-Appellant.

Docket No. 208921.

Court of Appeals of Michigan.

Submitted January 18, 2000, at Detroit.

Decided June 23, 2000, at 9:10 a.m.

Released for Publication September 6, 2000.

Bellanca, Beattie and De Lisle, P.C.(by Frank D. Eaman and Lawrence J. Paolucci), Harper Woods, for the plaintiff.

Robert E. Edick, Detroit, and Richard L. Cunningham, Detroit, for the defendant.

Before: BANDSTRA, C.J., and HOLBROOK, JR., and FITZGERALD, JJ.

BANDSTRA, C.J.

Defendant appeals by leave granted the trial court's order denying summary disposition of plaintiff's defamation suit.We affirm.

This case arises from a letter that was written by defendant on October 7, 1996, to Michigan Supreme Court Commissioner Glen B. Gronseth.At the time the letter was written, defendant was the Grievance Administrator for the Michigan Attorney Grievance Commission.Gronseth served as liaison between the Supreme Court and the Attorney Grievance Commission.Plaintiff was a member of the Judicial Tenure Commission(JTC).The letter, written under the letterhead of the Attorney Grievance Commission, purported to contain information given to defendant regarding instances of misconduct by the JTC and its staff.The letter referenced the following allegations by JTC staff: (1)plaintiff was responsible in part for former JTC director Joseph F. Regnier's resignation, (2)plaintiff had used his position on the JTC for his personal benefit, (3) another JTC staff member had engaged in racial intimidation and harassment of members of the commission's support staff, and (4)plaintiff blocked discipline of that staff member and may have engaged in such intimidation and harassment himself.The letter also stated that JTC staff members had photocopied sensitive documents that may demonstrate that plaintiff engaged in conflicts of interest while serving on the commission out of concern that those documents would be destroyed.Moreover, defendant questioned JTC members' motives in appointing an interim director who defendant believed was incapable of serving in that capacity.¹Gronseth passed defendant's letter on to the Michigan Supreme Court Chief Commissioner.Thereafter, then Chief Justice James H. Brickley forwarded the letter to JTC Chairman Henry Baskin, explaining that the Supreme Court felt it necessary to bring defendant's allegations to the chairman's attention.On March 19, 1997, an article was printed in the Detroit News referencing the substance of defendant's letter to Gronseth and Chief Justice Brickley's letter to the JTC.On September 30, 1997, plaintiff filed the present action, claiming that the allegations involving plaintiff referenced in defendant's letter to Gronseth were either false or cast plaintiff in a false light.Plaintiff alleged that defendant's publication of the falsities to Gronseth, the Justices of the Supreme Court, and the press damaged his reputation.

Defendant moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10), contending that he was immune from suit under MCR 9.125, that he did not publish the letter to any newspaper, and that plaintiff, a public official, had failed to allege any facts showing actual malice.²The trial court denied defendant's motion for summary disposition, concluding that there were issues of fact concerning (1) whether defendant wrote the letter in the course of his duties and (2) whether defendant caused the letter to be sent to the newspaper.

Defendant argues that the trial court erred in denying summary disposition pursuant to MCR 2.116(C)(7) because he is absolutely immune from suit under the circumstances of the present case pursuant to MCR 9.125.We disagree.This Court recently discussed summary disposition based on a claim of statutory immunity:

On appeal, a trial court's grant of summary disposition is reviewed de novo.Spiek v. Dep't of Transportation,456 Mich. 331, 337, 572 N.W.2d 201(1998).Specifically, a court's interpretation of a statute is reviewed de novo on appeal.Stabley v. Huron-Clinton Metropolitan Park Authority,228 Mich.App. 363, 366, 579 N.W.2d 374(1998).When a motion for summary disposition is premised on MCR 2.116(C)(7), the nonmovant's well-pleaded allegations must be accepted as true and construed in the nonmovant's favor and the motion should not be granted unless no factual development could provide a basis for recovery.Stabley, supra at 365, 579 N.W.2d 374;Dewey v. Tabor,226 Mich.App. 189, 192, 572 N.W.2d 715(1997)."[T]he court must consider not only the pleadings, but also any affidavits, depositions, admissions, or documentary evidence that has been filed or submitted by the parties."Horace v. City of Pontiac,456 Mich. 744, 749, 575 N.W.2d 762(1998).If no facts are in dispute, whether the claim is statutorily barred is a question of law.Dewey, supra at 192, 572 N.W.2d 715.[Amburgey v. Sauder,238 Mich.App. 228, 231, 605 N.W.2d 84(1999).]

In contrast to the defendant in Amburgey, whose claim of immunity was rooted in a statute, defendant in the present case bases his claim of immunity on a court rule, MCR 9.125.However, the rules governing the interpretation of statutes apply with equal force to the interpretation of court rules.McAuley v. General Motors Corp.,457 Mich. 513, 518, 578 N.W.2d 282(1998).The interpretation and application of the court rules, like the interpretation of statutes, is a question of law that is reviewed de novo on appeal.Id.;Szymanski v. Brown,221 Mich.App. 423, 433, 562 N.W.2d 212(1997).

MCR 9.125 provides:

A person is absolutely immune from suit for statements and communications transmitted solely to the administrator, the commission, or the commission staff, or given in an investigation or proceeding on alleged misconduct or reinstatement.The administrator, legal counsel, investigators, members of hearing panels, the commission, the board, and their staffs are absolutely immune from suit for conduct arising out of the performance of their duties.

The rule provides immunity to two classes of persons associated with the Attorney Grievance Commission: (1) persons giving statements and communications (a) transmitted to the grievance commission or administrator or (b) given in an investigation or proceeding; and (2) the administrator and others involved in the grievance process for conduct arising out of the performance of their duties.Defendant claims that he is entitled to absolute immunity as a member of both classes because his letter to Gronseth was a communication "given in an investigation or proceeding on alleged misconduct" and because his reporting of the plaintiff's conduct to the Supreme Court was "conduct arising out of the performance of [his] duties" as Attorney Grievance Administrator.We disagree.

First, we cannot conclude that defendant is immune from suit because his letter constitutes statements made in an investigation on alleged misconduct.In interpreting a rule, this Court must read its language in the context of the entire rule in order to produce an harmonious whole.Frank v. William A Kibbe & Associates, Inc.,208 Mich.App. 346, 354, 527 N.W.2d 82(1995).MCR 9.125 is part of Chapter 9 of the court rules, which provides the procedure for attorney grievance proceedings.Although MCR 9.125 does not provide definitions of its terms, MCR 9.101 provides definitions of terms used in Chapter 9.MCR 9.101(12) defines "investigation" as "fact finding on alleged misconduct under the administrator's direction."The term "grievance" is defined as alleged misconduct.MCR 9.101(11).Clearly, the reference in MCR 9.125 to statements made in an investigation refers to fact finding on attorney grievances, not to all statements made to any tribunal.In the present case, defendant wrote the following: "I have hesitated to become involved in matters that do not directly concern me, but, I now feel I have no choice, but to come forward with this information."(Punctuation in original).Given that defendant himself admitted that the allegations did not directly concern him, we must conclude that there is, at the very least, a factual issue regarding whether defendant's statements were made in the course of investigating an attorney grievance.

Second, defendant's purpose in writing the letter is not clear.While much of the letter focuses on alleged improper conduct by plaintiff, the letter also focused on another JTC staff member's racial intimidation and harassment of other employees, the effect of the interim director's appointment and the overall ability of the JTC to function under the circumstances.The JTC is a constitutional entity, Const. 1963, art. 6, § 30, over which the Attorney Grievance Administrator is given no authority.Consequently, it cannot be said as a matter of law that defendant was engaging in conduct arising out of the performance of his duties as Grievance Administrator.Thus, we cannot conclude that defendant was entitled to summary disposition on the basis of MCR 9.125 immunity.

Further, we reject defendant's claim that summary disposition should have been granted under MCR 2.116(C)(10) because there is no genuine issue of material fact with respect to the elements of the defamation claim.A motion under MCR 2.116(C)(10) tests whether there is factual support for a claim.Spiek, supra at 337, 572 N.W.2d 201;Radtke v. Everett,442 Mich. 368, 374, 501 N.W.2d 155(1993).Generally, a motion for summary disposition under MCR 2.116(C)(10) is premature when discovery on a disputed issue has not been completed.State Treasurer v. Sheko,218 Mich.App. 185, 190, 553 N.W.2d 654(1996).However, summary disposition before the close of discovery is appropriate if there is no reasonable chance that further discovery will result in factual support for the nonmoving party.Id.

Defendant contends that further discovery would be an unnecessary...