Fisher v. Detroit Free Press, Inc.

• Decision Date: 06 May 1987
• Docket Number: Docket No. 88154
• Citation: Fisher v. Detroit Free Press, Inc., 404 N.W.2d 765, 158 Mich.App. 409 (Mich. App. 1987)
• Parties: William L. FISHER, Plaintiff-Appellant, v. DETROIT FREE PRESS, INC., Defendant-Appellee. 158 Mich.App. 409, 404 N.W.2d 765, 13 Media L. Rep. 2241
• Court: Court of Appeal of Michigan

Page 765

404 N.W.2d 765

William L. FISHER, Plaintiff-Appellant, v. DETROIT FREE PRESS, INC., Defendant-Appellee.

Docket No. 88154.

158 Mich.App. 409, 404 N.W.2d 765, 13 Media L. Rep. 2241

Court of Appeals of Michigan.

Submitted Nov. 5, 1986.

Decided March 3, 1987.

Released for Publication May 6, 1987.

[158 MICHAPP 410] William L. Fisher, Troy, in pro per.

Honigman, Miller, Schwartz & Cohn by Herschel P. Fink, Detroit, for defendant.

Before HOOD, P.J., and T.M. BURNS and THEILER, ^* JJ.

[158 MICHAPP 411] HOOD, Presiding Judge.

Plaintiff, William L. Fisher, an attorney acting in propria persona, appeals as of right from a circuit court bench opinion and order granting summary disposition in favor of defendant pursuant to MCR 2.116(C)(8) and (10) on plaintiff's suit for defamation. Plaintiff's complaint was filed on January 9, 1984, and alleged in relevant part that:

"4. On or about January 12, 1983, defendant falsely and maliciously published of plaintiff in a prominent place in said newspaper for said persons to read a matter addressed to the eye which was calculated to bring plaintiff into contempt, ridicule or obliquy [sic] or to cause him to be shunned or avoided.

"5. Defendant published said matter in its report of a court decision concerning a suit to recover damages for injury to a tree and therein made it appear that said decision used reasoning while the plaintiff, Fisher, did not and that Fisher sought "loss of companionship of the sick tree" meaning that Fisher keeps, for companion, a tree, so deficient is he.

"6. Plaintiff has been damaged in person, property and reputation and has suffered injury to his feelings including indignation, shame, mental anxiety, insulted honor, and wounds to his pride and manly feelings consequent upon defendant's wrong."

The prior court decision referred to is an opinion written in rhyme by Judge J.H Gillis of this Court, Fisher v. Lowe, 122 Mich.App. 418, 333 N.W.2d 67 (1983), lv. den., 417 Mich. 1100.18 (1983), and sometimes referred to as the "trees" opinion.

Although plaintiff does not clearly allege in his [158 MICHAPP 412] complaint that a false statement of fact was made in the newspaper article, he compares the defendant's article with one concerning the same subject matter which appeared in the Kalamazoo Gazette which plaintiff found unobjectionable. Defendant's article set forth the text of the opinion and included additional remarks made by Judge Gillis to defendant's reporter. Comparing the defendant's article with the Kalamazoo Gazette article and considering plaintiff's complaint and appellate briefs, it is clear that the statement in defendant's article that plaintiff considered defamatory is the following:

"The car's insurer offered to pay the tree surgeon's bill--$550--but Fisher sought $15,000 for the equivalent of 'loss of companionship of the sick tree,' Gillis said."

The trial court, in granting summary disposition, held that: "there is nothing in the story, quoting Judge Gillis off the record, which is slanderous in any way or nature." In response to defendant's motion for sanctions for frivolous litigation under MCR 2.114(D) and (E) the judge ruled:

"[P]ossibly they should be levied here, and to my mind this case appears entirely frivolous. It is not, certainly in the mind of Mr. Fisher, so I am going to rule against you on sanctions."

However, subsequently, the trial court did conditionally grant defendant's motion to assess actual costs for plaintiff's rejection of a mediation evaluation pursuant to MCR 2.403(O) if this Court ultimately affirms the circuit court. Plaintiff now contends that the circuit court erred in granting summary disposition to the defendant. Defendant [158 MICHAPP 413] has cross-appealed from the trial court's refusal to levy sanctions against the plaintiff under MCR 2.114.

Libel may be defined as a statement of and concerning the plaintiff which is false in some material respect and is communicated to a third person by written or printed words and has a tendency to harm the plaintiff's reputation. A libel may consist of a statement of fact or a statement in the form of an opinion, but a statement of opinion is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion. The meaning of a statement is that meaning which, under the circumstances, a reasonable person who sees the statement reasonably understands to be the meaning intended. It is, of course, plaintiff's burden to prove the elements of an alleged libel. See generally SJI2d 118.01, 118.03, 118.04, 118.05; see also Prosser and Keeton on Torts (5th ed), Secs. 111-113A; 3 Restatement Torts, 2d, Secs. 558-568.

The question of whether or not the meaning of a particular communication is defamatory is one for the court. Rouch v. Enquirer & News, 137 Mich.App. 39, 43, n. 2, 357 N.W.2d 794 (1984); Prosser and Keeton on Torts, supra at 774. The trial court in this case is correct that, as a matter of law, there was nothing defamatory in nature in defendant's newspaper article. While plaintiff seems to attempt to allege falsity in defendant's newspaper report in two aspects, he quite simply fails to sufficiently plead a material falsehood in his complaint. First, plaintiff argues that he did not sue in the underlying action for $15,000 as Judge Gillis allegedly told defendant's reporter, but rather for "whatever legal damages in excess of $10,000 the court deems just." Second, plaintiff contends that the article falsifies in implying by the "loss of companionship [158 MICHAPP 414] of the sick tree" remark that plaintiff keeps, for a companion, a tree.

As to the amount of damages pled, assuming for purposes of challenging defendant's summary disposition motion that plaintiff did not specifically seek $15,000, but merely alleged the required jurisdictional amount, the trial court was nonetheless correct. In Rouch v. Enquirer & News, supra, p. 43, n. 2, 357 N.W.2d 794, this Court, citing McCracken v. Evening News Assn., 3 Mich.App. 32, 141 N.W.2d 694 (1966), stated that, "[i]f the gist, the sting, of the article is substantially true the defendant is not liable." In McCracken, this Court held that a newspaper report that plaintiff was charged with a $100,000 fraud when the warrant specified a fraud amounting to approximately $50,000 is an inaccuracy that does not alter the complexion of the charge and would have no different effect on the reader than that which the literal truth would produce absent proof that such variance caused plaintiff damage. This rule should apply equally to the instant situation, particularly in view of the fact that in any event the amount of damages sought by plaintiff in his complaint was greater than $10,000.

As to defendant's quote from Judge Gillis that plaintiff's suit was for the equivalent of "loss of companionship of the sick tree," the trial court was correct in holding that the remark was not reasonably capable of defamatory meaning. Instead, the analogy represented the appellate judge's effort to characterize and explain plaintiff's novel legal theory to the public. Further, the statement was no more than the opinion of Judge Gillis. In First Amendment defamation cases involving a media defendant, an opinion is constitutionally protected whether made by newspaper itself or the speaker quoted.

For example, in Orr v. Argus-Press Co., 586 F.2d [158 MICHAPP 415] 1108 (CA 6, 1978), cert. den., 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773 (1979), the federal court applying both Michigan common law and federal constitutional law, held that characterizations of a legal theory are constitutionally protected opinions when based upon disclosed facts of the case. Citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789, 805 (1974), the Orr court held that a newspaper's "opinion" about the meaning of an indictment cannot be made the basis of a libel suit against the newspaper:

"Under the First Amendment there is no such thing as a false idea. However, pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Orr, supra at 1114.

In the instant case, we do not doubt that plaintiff honestly believes that his reputation was harmed by defendant's article. Nonetheless, plaintiff's honest belief that he has been defamed is not determinative. The article complained of may not reasonably be understood to be defamatory. Because the statements concerning the plaintiff contain no material falsehood, the trial court was correct in concluding as a matter of law that there was nothing of a defamatory nature in defendant's newspaper article. ¹

Plaintiff's "honest belief" in his pleadings is at [158 MICHAPP 416] the crux of the second issue, defendant's cross-appeal from the trial court's refusal to impose sanctions under MCR 2.114. Plaintiff's complaint was filed on January 9, 1984, well prior to the March 1, 1985, effective date of MCR 2.114. Defendant did not file a notice of its intention to seek sanctions under the new court rule until June 17, 1985. ² Prior to the defendant's filing of its July 22, 1985, summary disposition motion, on July 16, 1985, the case was submitted to mediation and was unanimously evaluated by the panel as a zero-award case in favor of defendant, which defendant accepted and plaintiff rejected. Although the trial court, in granting summary disposition, declined to sanction plaintiff under MCR 2.114(D) and (E), the court subsequently, on December 13, 1985, granted defendant's motion to assess actual costs against plaintiff for plaintiff's rejection of mediation pursuant to MCR 2.403(O).

While plaintiff...