Millen v. Birdseye
| Decision Date | 22 September 2022 |
| Docket Number | 357290 |
| Parties | GERALD MILLEN and CUSTOM BUILD PROPERTIES, LLC, doing business as GREENHOUSE OF WALLED LAKE, Plaintiffs-Appellants, v. AARON BIRDSEYE, STEVEN ATWELL, and ROBERT MANNA, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Oakland Circuit Court LC No. 2019-178743-NZ
Before: Ronayne Krause, P.J., and Jansen and Swartzle, JJ.
Plaintiffs Gerald Millen and Custom Built Properties, LLC, doing business as Greenhouse of Walled Lake, appeal as of right the trial court's opinion and order granting summary disposition in favor of defendants Aaron Birdseye, Steven Atwell, and Robert Manna, thereby dismissing plaintiffs' claims of defamation, intentional infliction of emotional distress, and tortious interference with a contractual relationship. We affirm.
This case arises from postings on the Facebook page "Walled Lake Fax," which Birdseye created and maintained to chronicle what he perceived to be corruption in the city of Walled Lake regarding the distribution of business licenses for recreational marijuana provision centers. Plaintiffs were granted a business license to operate a recreational marijuana provisioning center in Walled Lake. BDS Medical Growers ("BDS"), a company owned by defendants Atwell and Manna, was denied a license. Plaintiffs were frequent targets of Birdseye's posts, along with Walled Lake City Council members, the mayor, and the city manager. Plaintiffs filed a complaint alleging defamation, intentional infliction of emotional distress, and tortious interference with a contractual relationship. The trial court granted defendants' motions for summary disposition under MCR 2.116(C)(10), dismissing plaintiffs' claims.
This Court reviews de novo a trial court's ruling on a motion for summary disposition. Anzaldua v Neogen Corp, 292 Mich.App. 626, 629; 808 N.W.2d 804 (2011). "A motion under MCR 2.116(C)(10) tests the factual support for a claim and should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id. at 630. "The nonmoving party may not rest on the allegations in the pleadings, but must set forth, through documentary evidence, specific facts demonstrating a genuine issue for trial." Id.
Preliminarily defendants argue that plaintiffs failed to include all the reasons for which the trial court granted summary disposition in their statement of questions involved, and therefore, have waived any appeal of the unaddressed issues. The trial court ruled that defendants were entitled to summary disposition for the reasons set forth in their briefs. The court also stated that plaintiffs failed to provide any admissible evidence in support of their claims for economic damages, and that plaintiffs failed to show that any of the alleged defamatory statements amounted to more than opinion. The court also stated that the forum in which the comments were posted made it more likely that the comments were opinions that were not provable as fact.
The reasons set forth in Manna's and Atwell's motions for summary disposition were that: (1) no evidence established that Manna or Atwell made or published the statements that were the subject of the complaint; (2) no evidence established that Manna or Atwell procured or assisted Birdseye in publishing the statements; and (3) there was no question of fact that Atwell, Manna, or BDS were vicariously liable for the statements made by Birdseye. Alternatively, Manna and Atwell argued that plaintiffs' claims must fail because the alleged statements were not actionable defamation, the conduct alleged in the complaint was insufficient to state a claim for intentional infliction of emotional distress, and no record evidence supported causation of damages in support of plaintiffs' claim of tortious interference. The reasons set forth in Birdseye's motion for summary disposition were that the alleged statements were not actionable defamation because they were opinion or rhetorical hyperbole, and Millen was a limited-purpose public figure and plaintiffs failed to show that the alleged statements were made with actual malice. Birdseye also argued that plaintiffs failed to present any evidence to establish their remaining claims.
In their brief on appeal, plaintiffs' statement of questions presented only raises issues involving damages and whether the trial court erred by finding that the comments at issue were not defamatory because they were opinion and the comments were published on social media. MCR 7.212(C)(5) requires that an appellant's brief contain "[a] statement of questions involved, stating concisely and without repetition the questions involved in the appeal[,]" and "[e]ach question must be expressed and numbered separately . . . ." An issue not contained in the statement of questions presented may be considered waived on appeal. English v Blue Cross Blue Shield of Mich, 263 Mich.App. 449, 459; 688 N.W.2d 523 (2004). We agree that plaintiffs' statement of the questions involved do not address the entirety of the reasons why the trial court granted defendants' motions for summary disposition. Nevertheless, because plaintiffs discuss and cite authority in support of their arguments, and defendants likewise address them, we too will address plaintiffs' arguments. The Cadle Co v City of Kentwood, 285 Mich.App. 240, 258; 776 N.W.2d 145 (2009).
In considering plaintiffs' arguments, however, we will not consider events that occurred after plaintiffs filed their complaint. After the complaint was filed, Birdseye's animosity toward plaintiffs significantly increased. Birdseye created another Facebook page, "Westland Fax," and called into a Westland city council meeting to comment negatively on plaintiff's application for a business license in the city of Westland. Birdseye also posted a picture of Millen's minor child on Facebook and called 911 to report a domestic violence incident at Millen's personal residence.
Millen requested and was granted a personal protection order against Birdseye. However, plaintiffs did not file a motion to supplement their pleadings to add these events, nor did plaintiffs argue at the summary disposition stage, or on appeal, that they should be allowed to supplement their pleadings. MCR 2.118(E) provides:
On motion of a party the court may, on reasonable notice and on just terms, permit the party to serve a supplemental pleading to state transactions or events that have happened since the date of the pleading sought to be supplemented, whether or not the original pleading is defective in its statement of a claim for relief or a defense. . . .
Because plaintiffs did not supplement their pleadings under MCR 2.118(E), any events that occurred after plaintiffs filed their complaint are not properly before this Court.
Turning to the substantive merits of plaintiffs' claims, we conclude that the trial court properly granted defendants' motions for summary disposition on plaintiffs' claims for defamation, intentional infliction of emotional distress, and tortious interference with a contractual relationship.
"A plaintiff claiming defamation must plead a defamation claim with specificity by identifying the exact language that the plaintiff alleges to be defamatory." Thomas M Cooley Law Sch v Doe 1, 300 Mich.App. 245, 262; 833 N.W.2d 331 (2013). A communication is defamatory if it tends to lower an individual's reputation in the community or deters others from associating or dealing with that individual. TM v MZ, 326 Mich.App. 227, 240-241; 926 N.W.2d 900 (2018). "However, not all defamatory statements are actionable." Ireland v Edwards, 230 Mich.App. 607, 614; 584 N.W.2d 632 (1998). "If a statement cannot be reasonably interpreted as stating actual facts about the plaintiff, it is protected by the First Amendment." Id. A defamatory statement "must assert facts that are provable as false." TM, 326 Mich.App. at 241 (quotation marks and citation omitted). "The context and forum in which statements appear also affect whether a reasonable reader would interpret the statements as asserting provable facts, and this Court has recognized that Internet message boards and similar communication platforms are generally regarded as containing statements of pure opinion rather than statements or implications of actual, provable fact." Sarkar v Doe, 318 Mich.App. 156, 179; 897 N.W.2d 207 (2016) (quotation marks and citations omitted).
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