Lakin v. Rund, Docket No. 323695.

• Decision Date: 01 December 2016
• Docket Number: Docket No. 323695.
• Parties: LAKIN v. RUND.
• Court: Court of Appeal of Michigan — District of US

318 Mich.App. 127

896 N.W.2d 76

LAKIN

v.RUND.

Docket No. 323695.

Court of Appeals of Michigan.

Submitted Sept. 14, 2016, at Detroit.

Decided Dec. 1, 2016, at 9:00 a.m.

Sanford N. Lakin, in propria persona, Elkins & Associates, PLC, Southfield (by Michael D. Elkins ), and Bendure & Thomas, Bloomfield Hills (by Mark R. Bendure ) for Sanford N. Lakin and Cecelia J. Lakin.

Bodman PLC (by Thomas Van Dusen and Thomas J. Rheaume, Jr. ) and Bowen, Radabaugh & Milton, PC (by Thomas R. Bowen ), for Barbara Rund and St. Hugo of the Hills Catholic Church.

Before: BORRELLO, P.J., and MARKEY and RIORDAN, JJ.

PER CURIAM.

This is a defamation case arising out of a confrontation between plaintiff Sanford N. Lakin¹ and defendant Sister Barbara Rund, following a service at defendant St. Hugo of the Hills Catholic Church. Sanford was disappointed that he had not been permitted to serve as a lector at the service. When Sanford sought the intervention of defendant Monsignor Anthony Tocco,² Sanford learned that Rund had told Tocco that Sanford put a finger in her chest during the confrontation and also that Rund was afraid of Sanford. Plaintiffs contend that Rund's statement imputed the criminal offense of battery; therefore, it was defamatory per se. The trial court granted in part and denied in part defendants' motion for summary disposition, ruling that by stating that Sanford "put a finger" in her chest, Rund asserted that Sanford willfully and offensively touched her and thus implied that Sanford had committed a battery. The trial court ruled that because Rund's statement described a criminal battery committed by Sanford, plaintiffs pleaded a claim of defamation per se that did not require proof of special damages. This Court denied defendants' application for leave to appeal.³ Our Supreme Court, on defendants' further application for leave to appeal, issued an order stating that, in lieu of granting leave to appeal, it was remanding the case to this Court for consideration as on leave granted. Lakin v. Rund, 499 Mich. 860, 873 N.W.2d 590 (2016). The Court's order further stated:

The Court of Appeals shall consider (1) whether publication of an allegedly false and defamatory statement imputing to another conduct constituting the criminal offense of battery is actionable irrespective of special harm, see, e.g., Mains v. Whiting, 87 Mich. 172, 180, 49 N.W. 559 (1891) ; Taylor v. Kneeland, 1 Doug 67, 72 (Mich., 1843) (holding that words charging a person with a crime are not actionable per se unless the crime involves moral turpitude or would subject the person to an infamous punishment); and (2) whether the statement at issue in this case imputed to the plaintiff the criminal offense of battery. [Lakin, 499 Mich. 860, 873 N.W.2d 590.]

We address the second question first. We review de novo a trial court's decision regarding a motion for summary disposition under MCR 2.116(C) (8). Smith v. Stolberg, 231 Mich.App. 256, 258, 586 N.W.2d 103 (1998). Such a motion tests the legal sufficiency of a claim and must be determined on the basis of the pleadings alone. Id. All factual allegations supporting the claim and any reasonable inferences that can be drawn from the facts are accepted as true. Id. A motion under MCR 2.116(C)(8) should only be granted when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Thomas M. Cooley Law Sch. v. Doe 1, 300 Mich.App. 245, 262, 833 N.W.2d 331 (2013).

"A battery is an intentional, unconsented and harmful or offensive touching of the person of another, or of something closely connected with the person." People v. Reeves, 458 Mich. 236, 240 n. 4, 580 N.W.2d 433 (1998). It is not necessary that the touching cause an injury. People v. Cameron, 291 Mich.App. 599, 614, 806 N.W.2d 371 (2011). Further, because an attempt to commit a battery will establish an assault, People v. Starks, 473 Mich. 227, 234, 701 N.W.2d 136 (2005), "every battery necessarily includes an assault because a battery is the very ‘consummation of the assault.’ " Cameron, 291 Mich.App. at 614, 806 N.W.2d 371 (citation omitted); see also People v. Terry, 217 Mich.App. 660, 662, 553 N.W.2d 23 (1996). While the common law did not require proof of intent, Michigan requires proving the "intent to injure in order to establish an assault and battery." People v. Datema, 448 Mich. 585, 599, 533 N.W.2d 272 (1995). "The intent of the defendant may be established by circumstantial evidence." Terry, 217 Mich.App. at 663, 553 N.W.2d 23.

According to plaintiffs, Rund told Tocco that Sanford had "put a finger" in her chest. We conclude that this statement, viewed in light of the circumstances to which it related, imputed to Sanford the criminal offense of battery. See Smith, 231 Mich.App. at 258–259, 586 N.W.2d 103 (concluding that the defendant's alleged action of pushing the plaintiff into a bench constituted an intentional offensive battery; in other words, a battery). Sanford's intent to engage in an offensive, intentional touching of Rund by putting his finger in her chest can be inferred from the circumstantial evidence. Terry, 217 Mich.App. at 663, 553 N.W.2d 23. The complaint describes a heated argument between Sanford and Rund regarding her decision to allow another individual to serve as lector during the preceding church service. While defendants claim that the statement merely described Sanford as gesturing with his hands, when we view the complaint in the light most favorable to plaintiffs, Johnson v. Pastoriza, 491 Mich. 417, 435, 818 N.W.2d 279 (2012), it describes Sanford as putting his finger into Rund's chest in order to make a point during an argument. Placing one's finger in the chest of another, especially a nun, during an argument, can reasonably be seen as an offensive touching. Indeed, that Rund reported to Tocco that she was fearful of Sanford in connection with relating the incident also leads to the fair inference that the alleged touching was offensive to Rund. Therefore, we conclude that the trial court correctly ruled that Rund's statement imputed to Sanford the criminal offense of battery.

The more difficult question is "whether publication of an allegedly false and defamatory statement imputing to another conduct constituting the criminal offense of battery is actionable irrespective of special harm [.]" Lakin, 499 Mich. at 860, 873 N.W.2d 590. Whether a party has pleaded all the elements of a cause of action presents a question of law this Court reviews de novo. In re Receiver of Venus Plaza, 228 Mich.App. 357, 359–360, 579 N.W.2d 99 (1998).

The elements of a claim of defamation 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).]

In Burden v. Elias Bros. Big Boy Restaurants, 240 Mich.App. 723, 727–728, 613 N.W.2d 378 (2000), this Court held that "words charging the commission of a crime are defamatory per se, and hence, injury to the reputation of the person defamed is presumed to the extent that the failure to prove damages is not a ground for dismissal." Indeed, the common-law principle that words imputing the commission of a crime constitute defamation per se was used as a reference point in MCL 600.2911(1), which codified the common-law principle that imputing lack of chastity was defamatory per se. Burden, 240 Mich.App. at 728–729, 613 N.W.2d 378. MCL 600.2911(1) states, "Words imputing a lack of chastity to any female or male are actionable in themselves and subject the person who uttered or published them to a civil action for the slander in the same manner as the uttering or publishing of words imputing the commission of a criminal offense."

The issue presented in this case is whether defamation per se includes imputing the commission of every crime or "criminal offense," or whether it is limited to a smaller subset of crimes in accordance with the common law. With respect to MCL 600.2911(1), we note that our Supreme Court has held that "words and phrases that have acquired a unique meaning at common law are interpreted as having the same meaning when used in statutes dealing with the same subject." Pulver v. Dundee Cement Co., 445 Mich. 68, 75, 515 N.W.2d 728 (1994). Indeed, the Legislature instructs in MCL 8.3a, with respect to statutes, "technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning." In addition, "when the Legislature codifies a judicially defined requirement [or term] without defining it itself, a logical conclusion is that the Legislature intended to adopt the judiciary's interpretation of that requirement [or term]." Pulver, 445 Mich. at 75, 515 N.W.2d 728. Therefore, we conclude that what constitutes defamation per se with respect to imputing the commission of a crime or a criminal offense must be determined by examining the common law.

Our Supreme Court directs our attention to " Taylor v. Kneeland, 1 Doug. 67, 72 (Mich., 1843) (holding that words charging a person with a crime are not actionable per se unless the crime involves moral turpitude or would subject the person to an infamous punishment)[.]" Lakin, 499 Mich. at 860, 873 N.W.2d 590. In Taylor, the Court considered whether the imputation of embezzlement was actionable per se. Taylor, 1 Doug. at 66, 72. The Court held that "words charging a person with the embezzlement of goods are not actionable because the charge, if true, will not subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment." Id. at 72 (citations omitted). Four decades...