Leitch v. Switchenko

• Decision Date: 11 August 1988
• Docket Number: No. 94942,94942
• Citation: 426 N.W.2d 804,169 Mich.App. 761
• Parties: Ronald E. LEITCH and Alvera Leitch, Plaintiffs-Appellants, v. Debra M. SWITCHENKO, Defendant, and Burroughs Corporation, a foreign corporation, Defendant-Appellee, jointly and severally. 169 Mich.App. 761, 426 N.W.2d 804
• Court: Court of Appeal of Michigan — District of US

Page 804

426 N.W.2d 804

Ronald E. LEITCH and Alvera Leitch, Plaintiffs-Appellants, v. Debra M. SWITCHENKO, Defendant and Burroughs Corporation, a foreign corporation Defendant-Appellee, jointly and severally.

No. 94942.

169 Mich.App. 761, 426 N.W.2d 804

Court of Appeals of Michigan.

Submitted Oct. 21, 1987.

Decided July 6, 1988.

Released for Publication Aug. 11, 1988.

[169 MICHAPP 762] Lakin, Worsham & Victor, P.C. by Larry A. Smith, Southfield, for plaintiffs-appellants.

[169 MICHAPP 763] Gofrank & Kelman by Thomas J. Killeen, Jr., Southfield, for defendant.

Before WALSH, P.J., and WEAVER and WARSHAWSKY ^*, JJ.

PER CURIAM.

Plaintiffs appeal from an order issued by the Wayne Circuit Court granting summary disposition to defendant Burroughs Corporation.

Defendant Debra Switchenko, who was employed by Burroughs, was shopping for a used car in September, 1984, for her personal use. After finding a car she liked at Blackwell Ford, Ms. Switchenko began to negotiate for its purchase with plaintiff Ronald Leitch, a used car salesman. On October 2, 1984, Ms. Switchenko returned to the dealership to buy the car and made Leitch an offer for the car that was about $300 to $400 lower than Leitch's previous offer. Thereupon a ten- to fifteen-minute exchange took place between Switchenko and Leitch which Switchenko later characterized as rude, embarrassing, intimidating, and angry. Switchenko left the lot, returned to her office at Burroughs, and wrote a letter on Burroughs' stationery to the president of Blackwell Ford that became the basis of this action. Ronald Leitch was fired the day the letter arrived.

Plaintiffs sued Switchenko and Burroughs. In the first three counts of the complaint, plaintiffs asserted that Burroughs was liable, on a respondeat superior basis, for libel, slander, and interference with the employment contract between Ronald Leitch and his employer. In Count IV of the complaint, Burroughs was charged with negligence in hiring Ms. Switchenko. Burroughs moved for summary disposition of the claims against it. The [169 MICHAPP 764] lower court concluded that Ms. Switchenko had been acting solely in her individual capacity and not as either an actual or apparent agent of Burroughs. It held that Burroughs was not, therefore, liable for the libel, slander, or contract interference allegedly committed by Switchenko and granted summary disposition to Burroughs under MCR 2.116(C)(10). The court also held that there were no facts to support the claim that Burroughs had been negligent in hiring Switchenko and that summary disposition as to this count was proper under MCR 2.116(C)(8). Plaintiffs appeal from the amended final order granting judgment to Burroughs.

Plaintiffs claim on appeal that liability against Burroughs was established under the doctrine of respondeat superior and, therefore, the trial court's grant of summary disposition to Burroughs on all four counts was improper.

We initially note that plaintiffs have abandoned any claim that summary disposition on Count IV, as to negligent employment, was improper. The title of plaintiffs' sole argument on appeal concludes that the employer is liable on the basis of respondeat superior. Since Count IV was an allegation made directly against the employer, there would be no respondeat superior liability. Moreover, the only place plaintiffs' claim as to Count IV is arguably addressed is in the last paragraph of plaintiffs' brief, in a one-sentence argument with no citation to authority. A statement of position without supporting citation is insufficient to bring an issue before this Court. A party may not leave it to this Court to search for authority to sustain or reject its position. Tringali v. Lal, 164 Mich.App. 299; 416 N.W.2d 117 (1987). This Court concludes that the issue as to summary disposition on Count IV has been waived. City of Midland v. Helger [169 MICHAPP 765] Construction Co, Inc, 157 Mich.App. 736, 745; 403 N.W.2d 218 (1987).

We now focus on plaintiffs' claim as to Counts I, II and III of their complaint and whether summary disposition was properly granted pursuant to MCR 2.116(C)(10).

A motion for summary disposition on the ground that there is no genuine issue of material fact tests the factual support of the claim. Slaughter v. Smith, 167 Mich.App. 400; 421 N.W.2d 702 (1988); Hagerl v. Auto Club Group Ins. Co, 157 Mich.App. 684, 687; 403 N.W.2d 197 (1987), lv. den. 428 Mich. 900 (1987). The court must consider the affidavits and all other evidence as well as the pleadings and be satisfied that the claim cannot be supported by evidence at trial before granting summary disposition under MCR 2.116(C)(10). Id. The opposing party is entitled to all benefits of doubt and all reasonable inferences must be decided in that party's favor. Id.

As a general rule, an employer may be vicariously liable for the intentional torts of an employee "if the tort is committed in the course and within the scope of the employee's employment. An employer is not liable, however, if the employee does the act while engaged in the employer's work, but outside of his authority." ...