Meyer v. Hubbell

Decision Date22 September 1982
Docket NumberDocket No. 58169
Citation117 Mich.App. 699,324 N.W.2d 139
PartiesJames A. MEYER, Plaintiff-Appellant, v. Stuart D. HUBBELL, John R. Blakeslee, James R. McCormick, Michael J. Houlihan, William L. Wise and Christine R. Blakeslee, jointly and severally, Defendants- Appellees. 117 Mich.App. 699, 324 N.W.2d 139
CourtCourt of Appeal of Michigan — District of US

[117 MICHAPP 702] Sumpter & Loznak, P.C. by Donn Hubbell, Cheboygan, for plaintiff-appellant.

Chirco, Donaldson, Herrington & Runstadler, Detroit, for defendants-appellees Blakeslee.

Houlihan, Elhart & Bishop, Traverse City, for defendants-appellees Hubbell, Wise & Houlihan.

James R. McCormick, in pro. per.

Before KELLY, P.J., and CYNAR and COOK, * JJ.

CYNAR, Judge.

On September 11, 1980, plaintiff, James A. Meyer, filed in pro per a two-count civil complaint against the defendants in Grand Traverse County Circuit Court. The complaint alleged "perjury/false swearing" and conspiracy to commit the same. Plaintiff subsequently filed a motion, per counsel, on October 29, 1980, seeking to amend his complaint. Defendants filed motions for summary judgment and accelerated judgment. On December 8, 1980, a hearing was held on these various motions. The trial court issued a written opinion on April 30, 1981, which denied plaintiff's motion to amend and granted accelerated judgment in favor of the defendants. From this decision plaintiff appeals as of right.

The alleged false statements involved in this action arise from a criminal proceeding filed by [117 MICHAPP 703] the Grand Traverse prosecutor at the request of the plaintiff against defendant John Blakeslee for wiretapping, in violation of M.C.L. Sec. 750.539c; M.S.A. Sec. 28.807(3).

Briefly summarized, the criminal proceedings were brought on the allegations of plaintiff to the effect that Blakeslee had wiretapped plaintiff's phone after Blakeslee learned that his wife was having an affair with the plaintiff. Blakeslee was then the prosecuting attorney for Grand Traverse County. Blakeslee's wife subsequently divorced him, was awarded custody of the children and thereafter married plaintiff. In dismissing the charges against Blakeslee the trial judge stated, on the basis of the testimony of the defense witnesses, defendants herein, that plaintiff had attempted to commit blackmail and extortion against several people. The trial judge stated that plaintiff had attempted to blackmail associates of Blakeslee to influence him not to contest Blakeslee's ex-wife's suit for an increase in child support and in order to convince Blakeslee to drop his suit seeking visitation rights. This Court affirmed the trial judge's dismissal of the wiretap charges in an unpublished memorandum opinion.

Following the dismissal of the wiretap charges against John Blakeslee, a series of articles appeared in the Traverse City Record-Eagle newspaper speculating on whether any improprieties occurred in the prosecution of the case. Defendants Hubbell and Houlihan felt these articles were misleading and therefore distributed approximately 500 copies of the circuit court judge's opinion to various people in the community. These defendants attached a cover letter to the opinion asking the readers to determine for themselves whether the newspaper's claim of a "cover-up" [117 MICHAPP 704] was valid. The distribution of these opinions occurred in late January of 1978.

Plaintiff appeals as of right from the trial court's grant of accelerated judgment and refusal to allow plaintiff to amend his complaint.

I.

We find no merit to plaintiff's argument that a civil cause of action for perjury or false swearing should be recognized in Michigan. This Court held to the contrary in Rogoski v. Muskegon, 107 Mich.App. 730, 309 N.W.2d 718 (1981), and we adhere to that decision under the circumstances in the instant case. The trial court did not err in finding that there is no such cause of action in Michigan.

We also find that the trial court properly interpreted the substance of plaintiff's complaint as being an action for libel. The gist of an action for libel is injury to the plaintiff's reputation by false and defamatory attacks. Campos v. General Motors Corp., 71 Mich.App. 23, 25, 246 N.W.2d 352 (1976); see also Croton v. Gillis, 104 Mich.App. 104, 108, 304 N.W.2d 820 (1981). In Campos the issue before the Court was the nature of the cause of action stated in the plaintiff's complaint. This Court held that the trial judge erred in considering the case as one solely of defamation and not one which involved the individual cause of action of intentional infliction of emotional distress. Campos, supra, 71 Mich.App. 27, 246 N.W.2d 352.

In the case at bar, by contrast, plaintiff alleged that the perjury and conspiracy to perjure caused damage to his "reputation, credibility, character, business and professional status". Plaintiff alleged no other harm to himself in this pleading which [117 MICHAPP 705] could give rise to an intentional infliction of emotional distress claim. Since plaintiff's complaint was properly interpreted to allege libel, the trial judge was correct in applying the one-year statute of limitations period to bar the action. M.C.L. Sec. 600.5805(7); M.S.A. Sec. 27A.5805(7). Plaintiff did not file his complaint until September 11, 1980, whereas the publication of the purported libelous statements occurred in January of 1978. Since the plaintiff brought suit well after the period of limitation had run, it was not error for the trial judge to grant accelerated judgment pursuant to GCR 1963, 116.1(5).

The trial judge properly ordered accelerated judgment in favor of defendants, inasmuch as the plaintiff's complaint either alleged a cause of action which did not exist in Michigan or alleged a libel action well after the one-year statute of limitations period had expired. Plaintiff's claim of error as to this issue is therefore meritless.

II.

Plaintiff also argues that the trial court erred in denying plaintiff's motion to file an amended complaint alleging intentional infliction of mental distress and interference with prospective economic advantage.

In Michigan, amendment of pleadings is governed by GCR 1963, 118.1, which provides that leave to amend should be "freely given when justice so requires". In Ben P. Fyke & Sons v. Gunter Co., 390 Mich. 649, 656-659, 213 N.W.2d 134 (1973), the Supreme Court opined that a motion to amend should ordinarily be granted absent factors such as undue delay, bad faith or a dilatory motive,[117 MICHAPP 706] or when such an amendment would be "futile". The trial judge should ignore the substantive merits of a claim or defense unless it is legally insufficient on its face, making it "futile" to allow the amendment. Id., 660, 213 N.W.2d 134; Biff's Grills, Inc. v. State Highway Comm., 75 Mich.App. 154, 160, 254 N.W.2d 824 (1977), lv. den. 401 Mich. 827 (1977).

Plaintiff's first amended cause of action is intentional infliction of emotional distress. In Fry v. Ionia Sentinel-Standard, 101 Mich.App. 725, 731-732, 300 N.W.2d 687 (1980), this Court stated:

"A claim for intentional infliction of emotional distress has been defined as follows:

" '(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.' Warren v June's Mobile Home Village & Sales, Inc, 66 Mich. 386, 390, 239 N.W.2d 380 (1976), citing 1 Restatement Torts 2d, Sec. 46, p 71.

"Liability is confined to conduct 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'. Warren v. June's Mobile Home Village & Sales, Inc., supra, 391 ."

But see: Kewin v. Massachusetts Mutual Life Ins. Co., 409 Mich. 401, 421, 295 N.W.2d 50 (1980), reh. den. 409 Mich. 1116 (1980) (Supreme Court expressed no opinion on the accuracy of this Court's observation that Michigan recognizes this tort).

Defendants Hubbell and Houlihan's act of circulating a judicial opinion to several hundred members of the community cannot be characterized as "outrageous" or "extreme" conduct so as to expose defendants to liability. As noted in defendants' [117 MICHAPP 707] briefs, the opinion was reproduced and circulated by defendants Hubbell and Houlihan in order to set the record straight as to what the trial judge held in the wiretap case against defendant John Blakeslee. A series of front page articles had appeared in the Traverse City Record-Eagle, the city's only newspaper, probing plaintiff's allegations that government officials had covered up criminal activity by Blakeslee when he was prosecutor of the county. The defendants felt they could not get their version of the events accurately reported, so they sent out 500 exact copies of the trial judge's opinion with a cover letter asking the recipients to read the opinion and then determine for themselves what had transpired. This "publication" by circulation of a judicial opinion is not the type of activity which opens itself up to liability on intentional infliction of emotional distress grounds.

In Sherwood v. Evening News Ass'n, 256 Mich. 318, 320-321, 239 N.W. 305 (1931), the Michigan Supreme Court stated:

"It is well settled that a faithful and fair report of the proceedings in courts of justice are privileged, even though the reputation[s] of individuals incidentally suffer from their publication, and for the publication of faithful, true, and fair reports of judicial proceedings publishers are neither civilly nor criminally liable. Wason v. Walter, L.R. 4 Q.B. 73; Bromage v. Prosser, 4 B. & C. 247, 255 (107 Eng. Repr. 1051), Taylor v. Hawkins, 16 Q. B. 308, 321 (117 Eng. Repr. 897); Davison v. Duncan, 7 E. & B. 229 (119 Eng. Repr. 1233). The foundation of...

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