Kefgen v. Davidson, Docket No. 209770.

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: ZAHRA, P.J.
• Citation: 617 N.W.2d 351,241 Mich. App. 611
• Docket Number: Docket No. 209770.
• Decision Date: 19 September 2000
• Parties: Bruce C. KEFGEN, Plaintiff-Appellant, v. Terry DAVIDSON and Darlene Jennings, Defendants-Appellees.

617 N.W.2d 351
241 Mich. App. 611

Bruce C. KEFGEN, Plaintiff-Appellant,
v.
Terry DAVIDSON and Darlene Jennings, Defendants-Appellees

Docket No. 209770.

Court of Appeals of Michigan.

Submitted January 12, 2000, at Detroit.

Decided July 7, 2000, at 9:00 a.m.

Released for Publication September 19, 2000.

617 N.W.2d 354

Plunkett & Cooney, P.C. (by Jeffrey C. Gerish), Detroit, for the plaintiff

Garan, Lucow, Miller, P.C. (by Rosalind Rochkind and William J. Brickley), Detroit, for Terry Davidson.

Denise L. Mitcham & Associates (by Pamela Hobbs), Southfield, for Darlene Jennings.

Before ZAHRA, P.J., and SAAD and GAGE, JJ.

617 N.W.2d 352

617 N.W.2d 353

ZAHRA, P.J

Plaintiff appeals as of right from the trial court's order granting defendants' motions for summary disposition pursuant to MCR 2.116(C)(8) and dismissing plaintiff's defamation claims. We affirm.

FACTS

This case is based on alleged defamatory communications defendants made in 1995, during plaintiff's service as superintendent of the Bentley School District in Genesee County. Defendants are residents of Genesee County and parents of students enrolled in schools within the Bentley School District.

After the sale of a building that housed the Bentley School District's administrative offices, the Bentley School Board considered the options of renting, using already-owned facilities, or constructing a new building to serve as the new offices. On June 12, 1995, the school board voted to construct a new administrative office building, the cost not to exceed $200,000. During the ensuing months, defendants and other parents openly opposed the school board's decision. Both defendants became involved in a campaign to recall two board members and were outspoken regarding plaintiff's perceived role in the board's decision-making process.¹

617 N.W.2d 355

Soon after the school board's decision, defendant Darlene Jennings traveled to St. Clair County to review public documents pertaining to plaintiff's tenure as superintendent of the Algonac School District from 1989 to March 1992. Defendant Jennings admits her purpose in reviewing the documents was to determine the reason plaintiff left his position in Algonac. Defendant Jennings gave copies of the several documents she obtained to defendant Terry Davidson to review. In early September 1995, defendant Davidson filed a complaint with the Burton Police Department, claiming plaintiff violated competitive bidding laws and the Open Meetings Act, M.C.L. § 15.261 et seq.; MSA 4.1800(11) et seq., by meeting privately with school board members regarding the construction decision and by issuing a $30,000 check to a contractor before the school board's official vote to construct the new administrative offices. Defendant Davidson suspected plaintiff and school board members received kickbacks from contractors and subcontractors.²

According to plaintiff, during the months following the school board's vote to construct the new administrative building, defendants published several false, disparaging communications inside and outside school board meetings in an effort to cause his employment to be terminated. First, plaintiff claims defendants distributed a letter from the Algonac School Board dated April 1,1992, and attached several additional typewritten pages that referenced allegations lodged by the Algonac School District against plaintiff. Plaintiff claims the allegations referenced on the additional pages are false. Second, plaintiff claims defendant Jennings told a reporter at a school board meeting on July 17, 1995, that plaintiff's employment was terminated by Algonac Community Schools for misappropriation of funds. Third, plaintiff claims that while the Bentley School Board was in executive session on October 10, 1995, defendant Davidson told individuals attending the meeting that plaintiff had lied to the Bentley School Board. Fourth, plaintiff claims defendant Davidson told several people plaintiff was not to be trusted, was incompetent, was guilty of mismanagement, violated the law, and was fired from his job in Algonac. Fifth, plaintiff claims defendant Davidson told at least one person that the day before plaintiff was evicted plaintiff had crawled out the second-story window of a dwelling he rented in Algonac and left the gas on.

On December 4, 1995, plaintiff filed the present defamation action based on those alleged communications. Defendants filed motions for summary disposition on the grounds that the statements were absolutely privileged or, at least, subject to a qualified privilege given plaintiff's status as a public figure. The trial court ultimately granted summary disposition for defendants, ruling that some of the alleged communications were made during the Bentley School Board's legislative session and were absolutely privileged. The trial court also concluded that plaintiff failed to show by clear and convincing evidence that the alleged communications were made with actual malice. On appeal, plaintiff contends the trial court erred in determining that any of the defamatory communications were absolutely privileged and erred in ruling that there is no factual issue regarding whether defendants published the communications with knowledge of their falsity or in reckless disregard of the truth.

STANDARD OF REVIEW

We review a trial court's grant or denial of a motion for summary disposition de novo. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). Although defendants brought their motions for summary disposition pursuant to

617 N.W.2d 356

MCR 2.116(C)(8), the parties and the trial court relied on documentary evidence beyond the pleadings. Therefore, we will treat the motions as having been granted pursuant to MCR 2.116(C)(10) and examine the pleadings and the documents. Travis v. Dreis & Krump Mfg. Co., 453 Mich. 149, 183-184, 551 N.W.2d 132 (1996)(Boyle, J.); Glittenberg v. Doughboy Recreational Industries, Inc., 436 Mich. 673, 681, 462 N.W.2d 348 (1990)(Griffin, J.). A motion under MCR 2.116(C)(10) tests whether there is factual support for a claim. Spiek, supra; Radtke v. Everett, 442 Mich. 368, 374, 501 N.W.2d 155 (1993). A court must consider the affidavits, pleadings, depositions, admissions, or any other documentary evidence submitted in a light most favorable to the nonmoving party in deciding whether a genuine issue of material fact exists. Ritchie-Gamester v. Berkley, 461 Mich. 73, 76, 597 N.W.2d 517 (1999); Rollert v. Dep't of Civil Service, 228 Mich.App. 534, 536, 579 N.W.2d 118 (1998). All reasonable inferences are resolved in the nonmoving party's favor. Hampton v. Waste Mgt. of Michigan, Inc., 236 Mich.App. 598, 602, 601 N.W.2d 172 (1999).³

ANALYSIS

A communication is defamatory if, under all the circumstances, it tends to so harm the reputation of an individual that it lowers the individual's reputation in the community or deters others from associating or dealing with the individual. Kevorkian v. American Medical Ass'n, 237 Mich.App. 1, 5, 602 N.W.2d 233 (1999); Ireland v. Edwards, 230 Mich.App. 607, 619, 584 N.W.2d 632 (1998). Generally, a plaintiff may establish a claim of defamation by showing:

(1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged publication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod). [Kevorkian, supra at 8-9, 602 N.W.2d 233; Ireland, supra at 614, 584 N.W.2d 632.]

When addressing a defamation claim, a reviewing court is required to make an independent examination of the record to ensure against forbidden intrusions into the field of free expression. Kevorkian, supra at 5, 602 N.W.2d 233, citing Ireland, supra at 613, 584 N.W.2d 632.

A. Absolute Privilege

In the present case, it is first necessary to determine whether the alleged defamatory communications made during school board meetings were absolutely privileged. Communications deemed absolutely privileged are not actionable, even when spoken with malice. Froling v. Carpenter, 203 Mich.App. 368, 371, 512 N.W.2d 6 (1993); Couch v. Schultz, 193 Mich.App. 292, 294, 483 N.W.2d 684 (1992).⁴ The doctrine of absolute

617 N.W.2d 357

privilege is narrow and applies only to communications regarding matters of public concern. Froling, supra. The absolute privilege has generally been applied to communications made during legislative and judicial proceedings and to communications by military and naval officers. Id.; Couch, supra. The doctrine was extended to communications made by a public official in furtherance of an official duty during proceedings of subordinate legislative and quasi-legislative bodies. Froling, supra at 371-372, 512 N.W.2d 6, citing Gidday v. Wakefield, 90 Mich.App. 752, 755-756, 282 N.W.2d 466 (1979), citing Wachsmuth v. Merchants' Nat'l Bank, 96 Mich. 426, 56 N.W. 9 (1893), Stewart v. Troutt, 73 Mich.App. 378, 251 N.W.2d 594 (1977), and Brunn v. Weiss, 32 Mich.App. 428, 188 N.W.2d 904 (1971).

There are no Michigan cases considering whether a private citizen's statements during the proceedings of a quasi-legislative body that do not concern an ongoing public matter are absolutely privileged and we refuse to extend the narrow doctrine to apply to any such communications in this case. From the limited information in the lower court record, it appears that several of the alleged defamatory communications were made during official meetings of the Bentley School Board.⁵ A duly convened meeting of a school board may constitute a proceeding of a quasi-legislative body that allows for application of the absolute privilege doctrine. Stablein v. Schuster, 183 Mich.App. 477, 482, 455 N.W.2d 315 (1990); Gidday, supra at 755-756, 282 N.W.2d 466; see M.C.L. § 15.261 et seq.; MSA 4.1800(11) et seq. However, we hold...