Knutson v. Gassert

• Docket Number: 361675,361754
• Decision Date: 14 September 2023
• Parties: JAMES R. KNUTSON, JANET KNUTSON, and JAMES R. KNUTSON REVOCABLE TRUST, Plaintiffs/Counterdefendants- Appellees, v. DEAN P. GASSERT, Defendant/Counterplaintiff/Third- Party Plaintiff-Appellant, and THOMAS WAYNE KNUTSON, Third-Party Defendant-Appellee. COLUMBIA TOWNSHIP, Plaintiff/Counterdefendant-Appellee, v. DEAN P. GASSERT, Defendant/Counterplaintiff-Appellant, and D&D AUTO GROUP, INC., Defendant/Counterplaintiff.
• Court: Court of Appeal of Michigan (US)

1

JAMES R. KNUTSON, JANET KNUTSON, and JAMES R. KNUTSON REVOCABLE TRUST, Plaintiffs/Counterdefendants- Appellees,
v.
DEAN P. GASSERT, Defendant/Counterplaintiff/Third- Party Plaintiff-Appellant,

and THOMAS WAYNE KNUTSON, Third-Party Defendant-Appellee. COLUMBIA TOWNSHIP, Plaintiff/Counterdefendant-Appellee,
v.
DEAN P. GASSERT, Defendant/Counterplaintiff-Appellant,

and D&D AUTO GROUP, INC., Defendant/Counterplaintiff.

Nos. 361675, 361754

Court of Appeals of Michigan

September 14, 2023

UNPUBLISHED

Jackson Circuit Court LC Nos. 20-000929-CH, 19-004845-CH

2

Before: GLEICHER, C.J., and JANSEN and RICK, JJ.

PER CURIAM

These consolidated^[1] appeals arise from defendant Dean Gassert's use of his property in Columbia Township as a used car dealership. In Docket No. 361754, in a lawsuit between Columbia Township and Gassert, Gassert appeals as of right the trial court order granting summary disposition to the township on the basis that the car dealership constituted a violation of the applicable zoning classification. Docket No. 361675 involves a dispute between Gassert and his neighbors, James and Janet Knutson. The case began as a nuisance action by the Knutsons, and Gassert counterclaimed with claims of defamation, false-light invasion of privacy, and intentional infliction of emotional distress (IIED); he filed a third-party complaint raising the same claims against the Knutsons' son, Thomas Knutson. With respect to Gassert's claims, the trial court granted summary disposition to the Knutsons and Thomas, and on appeal, in Docket No. 361675, Gassert challenges the trial court's grant of summary disposition in this regard.^[2] For the reasons explained in this opinion, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

The Knutsons own, and reside at, property on Brooklyn Road in Colombia Township, where they have lived for 55 years. In December 2018, Gassert purchased a neighboring property, where he planned to operate a used car dealership. After his purchase, Gassert spoke to the township supervisor, Robert Elrod, about his plans, and undisputedly, Elrod initially approved the project. Without obtaining any permits and without site-plan approval for the project, Gassert opened his car dealership in September 2019. However, the township ultimately concluded that a used car dealership was not a permitted use for the property under the applicable zoning classification, and in October 2019, the township ordered Gassert to cease and desist operation of his car dealership. For their part, the Knutsons actively opposed the use of the property for a car dealership, and their adult son-Thomas-spoke against the use of the property as a car dealership at two township meetings in September 2019.

The dispute related to the use of Gassert's property eventually prompted two lawsuits against Gassert, the first by the township to enjoin the car dealership as a zoning violation. As to the township, Gassert counterclaimed, maintaining that the car dealership constituted a lawful use of the property under the applicable zoning ordinances or that the township should be estopped from precluding this use of the property in light of Elrod's approval of the project. Relevant to the zoning issue, Gassert contended that the property was zoned C-2 as reflected in minutes for a meeting of the township board of trustees on April 21, 2008, which indicated that the board voted

3

to approve a rezoning request-made by the property's previous owner-to rezone the property from AG-1, for agriculture, to C-2, a general commercial designation. The township, in contrast, contended that the property's zoning has been C-1 as reflected on the township's zoning map since 2008. Additionally, the township asserted that a new zoning ordinance and incorporated zoning map were adopted in February 2019, and under the newly adopted map, Gassert's property was unambiguously zoned C-1, designating the "local commercial" district in which a car dealership is a prohibited use.^[3] In the lawsuit between Gassert and the township, the trial court ultimately granted summary disposition to the township, concluding that the property was zoned C-1 and the car dealership was, therefore, not a permissible use of the property.

In the Knutsons' lawsuit, they filed suit alleging nuisance. Gassert counterclaimed, and filed a third-party complaint against Thomas. Most notably, Gassert maintained that Thomas- personally and as an agent for the Knutsons-defamed Gassert in his statements during two township meetings in September 2019, and that these statements also supported claims for false-light invasion of privacy and IIED. The trial court concluded that Thomas's statements were not defamatory and that, in any event, the statements were protected by a qualified privilege. The trial court granted summary disposition to the Knutsons, concluding that they could not be held vicariously liable for Thomas's statements.

These appeals followed.

II. THIRD-PARTY CLAIMS AGAINST THOMAS

On appeal, we first address Gassert's contention that the trial court erred by granting summary disposition to Thomas with respect to Gassert's third-party claims for defamation, IIED, and false-light invasion of privacy. Gassert argues that Thomas's statements were defamatory. He contends that the statements amount to defamation per se, and that qualified privilege did not protect Thomas's statements, which, according to Gassert, were made with actual malice. We disagree. We review de novo a trial court's decision to grant summary disposition. Cuddington v United Health Servs, Inc, 298 Mich.App. 264, 270; 826 N.W.2d 519 (2012).

When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all the evidence submitted by the parties in the light most favorable to the non-moving party and grants summary disposition only where the evidence fails to establish a genuine issue regarding any material fact. There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party. [Magley v M &W Inc, 325 Mich.App. 307, 313; 926 N.W.2d 1 (2018) (quotation marks and citation omitted).]

"A court may hold as a matter of law that a defamatory statement is incapable of defamatory meaning. But questions of fact may exist regarding the statement's potential defamatory meaning." Hope-Jackson v Washington, 311 Mich.App. 602, 621; 877 N.W.2d 736

4

(2015) (citation omitted). "Whether evidence is sufficient to support a finding of actual malice is a question of law." Kefgen v Davidson, 241 Mich.App. 611, 624-225; 617 N.W.2d 351 (2000).

When addressing defamation claims implicating First Amendment freedoms, appellate courts must make an independent examination of the record to ensure against forbidden intrusions into the field of free expression and to examine the statements and circumstances under which they were made to determine whether the statements are subject to First Amendment protection. [Northland Wheels Roller Skating Ctr, Inc v Detroit Free Press, Inc, 213 Mich.App. 317, 322; 539 N.W.2d 774 (1995).]

The existence of a privilege that immunizes a defendant from liability is a question of law that this Court considers de novo. Id. at 324.

"A defamatory communication is one that tends to harm the reputation of a person so as to lower him in the estimation of the community or deter others from associating or dealing with him." American Transmission, Inc v Channel 7 of Detroit, Inc, 239 Mich.App. 695, 702; 609 N.W.2d 607 (2000).

The elements of a defamation claim are: (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication 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 publication. [Mitan v Campbell, 474 Mich. 21, 24; 706 N.W.2d 420 (2005).]

"To be considered defamatory, statements must assert facts that are provable as false." Ghanam v Does, 303 Mich.App. 522, 545; 845 N.W.2d 128 (2014) (quotation marks and citation omitted). "Statements that cannot be interpreted as stating facts, such as 'rhetorical hyperbole' and the sort of 'imaginative expression' often found in satires, parodies, and cartoons, are protected by the First Amendment." Hope-Jackson, 311 Mich.App. at 622. Likewise, expressions of opinions typically are not actionable as defamation, provided that the "statement cannot be reasonably interpreted as stating actual facts about the plaintiff." Ireland v Edwards, 230 Mich.App. 607, 614; 584 N.W.2d 632 (1998).

Words charging a person with the commission of a crime constitute "defamation per se if the crime involves moral turpitude or would subject the person to an infamous punishment." Lakin v Rund, 318 Mich.App. 127, 138; 896 N.W.2d 76 (2016). However, not all statements that can be construed as a criminal accusation support a claim for defamation. Ghanam, 303 Mich.App. at 545546.

Terms such as "blackmailer," "traitor," "crook," "steal," and "criminal activities" must be read in context to determine whether they are merely exaggerations of the type often used in public commentary. Casual use of these terms and similar epithets "is the language of the rough-and-tumble world of politics. It is core political speech. It is consumed by an often skeptical and wary electorate" and is not seriously regarded as asserting factual truth. If a reasonable reader would

5

understand these epithets as merely "rhetorical hyperbole" meant to express strong disapproval rather than an accusation of criminal activity or actual misconduct, they cannot be regarded as defamatory. [Id. at 546 (citations omitted).]

Whether a...