Gilbert v. Grand Trunk Western R. R.

• Decision Date: 05 February 1980
• Docket Number: Docket No. 78-4331
• Citation: 290 N.W.2d 426,95 Mich.App. 308
• Parties: , 23 Fair Empl.Prac.Cas. (BNA) 1495 Lawrence Edward GILBERT, Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD et al., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 426

290 N.W.2d 426

95 Mich.App. 308, 23 Fair Empl.Prac.Cas. (BNA) 1495

Lawrence Edward GILBERT, Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD et al., Defendants-Appellees.

Docket No. 78-4331.

Court of Appeals of Michigan.

Feb. 5, 1980.

Released for Publication April 4, 1980.

William John Wilkinson, Kalamazoo, for plaintiff-appellant.

Wilson C. Thomas, Detroit, for Criswell.

Mary P. Sclawy, Detroit, for defendants-appellees.

Before CYNAR, P. J., and WALSH and BeBEAU, ^* JJ.

CYNAR, Presiding Judge.

Plaintiff appeals as of right the trial court's grant of defendants' motion for accelerated judgment and the resultant dismissal of plaintiff's action with prejudice.

Plaintiff first contends that the trial court erred in concluding that the statute of limitations had run with respect to all of plaintiff's claims of defamation, save one. Specifically, plaintiff says that since he alleged fraudulent concealment of a conspiracy to defame him, the trial court should have applied M.C.L. § 600.5855; M.S.A. § 27A.5855 ¹ as the appropriate statute of limitations, instead of ruling on the basis of M.C.L. § 600.5805(6); M.S.A. § 27A.5805(6), ² the subsection otherwise applicable as of the date the trial court made its ruling. Defendants argue that plaintiff failed to plead specifically those facts necessary to support a claim of fraudulent concealment ³ and that the trial judge therefore relied upon the correct limitation of actions provision in ruling.

A motion for accelerated judgment is the proper vehicle by which to raise the affirmative defense of the statute of limitations. GCR 1963, 116.1(5). The purpose of a motion for accelerated judgment is to test certain special defenses which may make trial on the merits unnecessary, even though factual issues may have to be resolved in order to rule upon the motion. Ceplin v. Bastian-Blessing Division of Golconda Corp., 90 Mich.App. 527, 530, 282 N.W.2d 380 (1979). In deciding the efficacy of the statute of limitations defense, a trial court generally is permitted to rule on the basis of the complaint alone, or may, in appropriate circumstances, additionally examine any affidavits submitted by either party, or further allow an immediate hearing on disputed questions of fact prior to ruling, or postpone any hearing on the motion until after a trial on the merits of plaintiff's claims. GCR 1963, 116.3.

In the instant case, affidavits were filed and a hearing was held, but no testimony was heard at that time. Following the hearing, the court below found that plaintiff had alleged fraudulent concealment in his complaint. With this conclusion we agree. Although the court failed thereafter to apply M.C.L. § 600.5855 in ruling on the defendants' motion with respect to the concealment, application of the proper statute of limitations would not alter the result in this Court. The reason we arrive at this determination is that plaintiff's complaint itself establishes that he discovered the underlying defamation claims in the early part of 1975. Yet he did not commence this action until September 19, 1977, well after the two-year statute of limitations found in M.C.L. § 600.5855 had run on plaintiff's claims, since he had alleged no circumstances which would have tolled the running of the statute. Janiszewski v. Behrmann, 345 Mich. 8, 35, 75 N.W.2d 77 (1956).

Where, as here, the trial judge achieves the right result, but assigns the wrong reason therefor, the result will not be disturbed on appeal. Peninsular Construction Co. v. Murray, 365 Mich. 694, 699, 114 N.W.2d 202 (1962), inter alia.

The language in plaintiff's complaint, intimating that a continuing conspiracy to defame him occurred, is of no moment. As noted in Roche v. Blair, 305 Mich. 608, 9 N.W.2d 861 (1943), in a civil action for damages resulting from wrongful acts (here, defamation) claimed to have been perpetrated in furtherance of a conspiracy, the gravamen of the action is not the conspiracy but the wrongful acts. Roche, supra, 614-615, 9 N.W.2d 861. The language adverting to a conspiracy was thus superfluous insofar as it might affect the applicability of a particular statute of limitations.

Moreover, as noted earlier, plaintiff's complaint indicates that, with one exception, all the alleged instances of defamation occurred no later than early 1975, thus refuting plaintiff's own unspecific contention that they were ongoing in nature and therefore fell within the statutory period for bringing such an action. Accordingly, we conclude that plaintiff's claims of defamation against all defendants, except defendants Wilson and Sclawy, were barred by the operation of M.C.L. § 600.5855; M.S.A. § 27A.5855.

As it further appears that the trial judge relied solely on the averments contained in plaintiff's complaint as factual support for his legal conclusion, he did not impermissibly resolve controverted questions of fact in denigration of plaintiff's demand for a jury trial. See GCR 1963, 116.3. This is true notwithstanding the fact that the trial court erroneously held an affidavit hearing in this case contrary to the aforementioned proscription found in GCR 116.3. ⁴ The affidavit hearing did not prejudice plaintiff or deny him his right to trial by jury where the trial judge instead relied solely on the allegations in plaintiff's complaint and accepted as true each averment therein in ruling on defendants' motion and where the complaint itself recited facts showing that plaintiff had no such entitlement. Thus, this procedural irregularity denied plaintiff no substantial right.

We conclude that statements made by defendant Wilson during the course of a previous legal action initiated by plaintiff, which were attributed to defendant Sclawy also by plaintiff, were not actionable as a matter of law, under Sanders v. Leeson Air Conditioning Corp., 362 Mich. 692, 695-696 108 N.W.2d 761 (1961), and Pagoto v. Hancock, 41 Mich.App. 622, 623-624, 200 N.W.2d 777 (1972), as allegations contained in plaintiff's complaint disclosed that these defendants were presumptively clothed with an absolute privilege to defame with respect to the statements made by them in the course of the earlier judicial proceedings, which presumption was unrebutted by any other averments in plaintiff's complaint.

However, defendants Wilson and Sclawy raised the question of privilege in their motion for accelerated judgment. This was error, as the proper method to raise the defense would be by a motion for summary judgment under GCR 1963, 117.2(1), on the ground of failure to state a claim upon which relief can be granted. Pagoto v. Hancock, supra, 623, 200 N.W.2d 777. Cf., Pompey v. General Motors Corp., 385 Mich. 537, 563, 189 N.W.2d 243 (1971).

However, the error of the trial court in granting the mislabeled motion was not reversible error. This Court has held that where the trial judge mistakenly grants a motion for accelerated judgment, we may consider whether the decision may be upheld under the summary judgment rule, at least where there is no prejudice to the plaintiff. American Fidelity Fire Ins. Co. v. Barry, 80 Mich.App. 670, 679, 264 N.W.2d 92 (1978), Warvel v. Michigan Community Blood Center, 74 Mich.App. 440, 444, 253 N.W.2d 791 (1977), Stewart v. Troutt, 73 Mich.App. 378, 383, 251 N.W.2d 594 (1977).

We detect no prejudice to plaintiff, or surprise, which would constrain us to reverse the ruling below, solely because the motion was mislabeled and the court's ruling thereupon was predicated on the wrong court rule. Plaintiff was clearly put on notice of the underlying basis for defendants' motion, and that the relief sought by defendants Wilson and Sclawy was a dismissal of plaintiff's claims against them. The result arrived at was correct under the circumstances, as defendants were entitled to a grant of summary judgment on the facts as stated in plaintiff's complaint. Pagoto v. Hancock, supra, 41 Mich.App. 623-624, 200 N.W.2d 777; Sanders v. Leeson Air Conditioning, supra, 362 Mich. 695-696, 108 N.W.2d 761.

Finally, we are asked to review the trial court's grant of defendants' motion for accelerated judgment with respect to plaintiff's claim of employment discrimination, again on the basis that the applicable statute of limitations had run on plaintiff's claim. The lower court ruled that the appropriate limitation for bringing such an action was three years, and that the statute had begun to run more than three years prior to the commencement of the instant action by plaintiff. However, the court cited neither statute nor judicial decision as authority for the proposition that the three-year period was the relevant span within which one must institute an action for employment discrimination.

What limitation of actions provision is controlling as against this claim of plaintiff's is a question of first impression in Michigan. Plaintiff argues that an action for employment discrimination falls under M.C.L. § 600.5813; M.S.A. § 27A.5813 as an "other personal action", and is thus subject to a six-year statute of limitations.

Defendants urge us to hold that an action for damages relating to employment discrimination is in actuality a claim for damages for injury to a person and therefore falls within the ambit of M.C.L. § 600.5805(7); M.S.A. § 27A.5805(7), as in effect on the date the order granting defendants' motion for accelerated judgment was entered. ⁵

There are no Michigan cases on point....