Morganroth v. Whitall, 91215

• Decision Date: 18 September 1987
• Docket Number: No. 91215,91215
• Citation: 411 N.W.2d 859,161 Mich.App. 785
• Parties: , 14 Media L. Rep. 1411 Shila MORGANROTH, Plaintiff-Appellant, v. Susan WHITALL and the Evening News Association, Inc., a corporation, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 859

411 N.W.2d 859

161 Mich.App. 785, 14 Media L. Rep. 1411

Shila MORGANROTH, Plaintiff-Appellant, v. Susan WHITALL and the Evening News Association, Inc., a corporation, Defendants-Appellees.

No. 91215.

Court of Appeals of Michigan.

Submitted April 14, 1987.

Decided July 21, 1987.

Released for Publication Sept. 18, 1987.

Gruel, Mills, Nims & Plyman by Grant J. Gruel and Scott R. Melton, Grand Rapids, for plaintiff-appellant.

Butzel, Long, Gust, Klein & Van Zile by Richard E. Rassel and James E. Stewart, Detroit, for defendants-appellees.

Before J.H. GILLIS, P.J., and BEASLEY and SAWYER, JJ.

SAWYER, Judge.

"Truth is a torch that gleams through the fog without dispelling it."

--Claude Helvetius, De l'Esprit.

In this heated dispute, the trial court granted summary disposition in favor of defendants on plaintiff's claims of libel and invasion of privacy by false light. Plaintiff now appeals and we affirm.

Plaintiff alleges that she was libeled and cast in a false light by an article written by defendant Whitall which appeared in the Sunday supplement of the Detroit News on November 11, 1984. The article was entitled "Hot Locks: Let Shila burn you a new 'do." The article was accompanied by two photographs, one depicting plaintiff performing her craft on a customer identified as "Barbara X" and the second showing Barbara X and her dog, identified as "Harry X," following completion of the hairdressing. Central to the article was the fact that plaintiff used a blowtorch in her hairdressing endeavors. According to the article, plaintiff's blowtorch technique was dubbed "Shi-lit" and was copyrighted. ¹ The article also described two dogs, Harry and Snowball, the latter belonging to plaintiff, noting that the canines have had their respective coats colored at least in part. The article also indicated that the blowtorch technique had been applied to both dogs. Additionally, the article described plaintiff's somewhat unusual style of dress, including a silver holster for her blowtorch and a barrette in her hair fashioned out of a $100 bill. Much of the article devoted itself to plaintiff's comments concerning her hairdressing and the trend of what, at least in the past, had been deemed unusual in the area of hair styles.

Plaintiff's rather brief complaint alleges that the article, when read as a whole, is false, misleading and constitutes libel. More specifically, the complaint alleges that the article used the terms "blowtorch lady," "blowtorch technique" and the statement that plaintiff "is dressed for blowtorching duty in a slashed-to-there white jumpsuit" without any factual basis and as the result of defendants' intentional conduct to distort and sensationalize the facts obtained in the interview. The complaint further alleges that the article falsely portrayed plaintiff as an animal hairdresser, again as part of a deliberate action by defendants to distort and sensationalize the facts. In her brief on appeal, plaintiff also takes exception to her being cast as an animal hairdresser and claims as inaccurate the portrayal in the article that she does "mutt Mohawks for dogs" and the reference to "two canines who have been blowtorched."

Defendants brought their motion for summary disposition pursuant to both MCR 2.116(C)(8), failure to state a claim, and MCR 2.116(C)(10), no genuine issue of material fact. Unfortunately, the trial court's ruling does not identify under which subrule summary disposition was granted. While the trial court's failure to identify which subrule was relied upon complicates this appeal, our review of the case leads us to believe that the issue is more properly analyzed under subrule 10, no genuine issue of material fact. Accordingly, we will analyze the issue on that basis.

A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. Stenke v. Masland Development Co., Inc., 152 Mich.App. 562, 394 N.W.2d 418 (1986). In ruling on this motion, the trial court must consider not only the pleadings, but also depositions, affidavits, admissions and other documentary evidence, MCR 2.116(G)(5), and must give the benefit of any reasonable doubt to the nonmoving party, being liberal in finding a genuine issue of material fact. Rizzo v. Kretschmer, 389 Mich. 363, 207 N.W.2d 316 (1973). Summary disposition is appropriate under this subrule only if the court is satisfied that it is impossible for the nonmoving party's claim to be supported at trial because of a deficiency which cannot be overcome. Hetes v. Schefman & Miller Law Office, 152 Mich.App. 117, 393 N.W.2d 577 (1986). We begin by noting that plaintiff failed to comply with MCR 2.116(G)(4), which requires that a party opposing a motion brought under subrule 10 not rest merely upon the allegations or denials of his pleadings, but come forward with evidence to establish the existence of a material factual dispute. If the nonmoving party fails to establish that a material fact is at issue, the motion is properly granted. Stenke, supra. As noted by defendants and admitted by plaintiff at the motion hearing, plaintiff has failed to file any response to defendants' motion and has come forward with no evidence to support a finding that a genuine issue of material fact exists.

The elements of defamation were stated by this Court in Sawabini v. Desenberg, 143 Mich.App. 373, 379, 372 N.W.2d 559 (1985):

The elements of a cause of action for defamation are: "(a) a false and defamatory statement concerning plaintiff; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod )". Postill v Booth Newspapers, Inc, 118 Mich App 608, 618; 325 NW2d 511 (1982), lv den 417 Mich 1050 (1983), citing Restatement Torts, 2d, Sec. 558; Curtis v Evening News Association, 135 Mich App 101, 103; 352 NW2d 355 (1984); Ledl v Quik Pik Food Stores, Inc, 133 Mich App 583; 349 NW2d 529 (1984).

See also Rouch v. Enquirer & News of Battle Creek, 427 Mich. 157, 173-174, 398 N.W.2d 245 (1986).

The Sawabini Court further commented on the appropriatness of dismissing a defamation claim by summary disposition:

The court may determine, as a matter of law, whether the words in question, alleged by plaintiff to be defamatory, are capable of defamatory meaning. See, e.g., Ledsinger v Burmeister, 114 Mich App 12, 21; 318 NW2d 558 (1982). Where the words are, as a matter of law, not capable of carrying a defamatory meaning, summary judgment under GCR 1963, 117.2(1) is appropriate. See Lins v Evening News Association, 129 Mich App 419, 422; 342 NW2d 573 (1983).

"A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Nuyen v. Slater, 372 Mich. 654, 662, fn; 127 NW2d 369 (1964); Ledsinger v Burmeister 114 Mich App 12, 21; 318 NW2d 558 (1982)." Swenson-Davis v Martel, 135 Mich App 632, 635-636; 354 NW2d 288 (1984), lv den 419 Mich 946 (1984). In assessing whether language is defamatory, the circumstances should be considered. Ledsinger v Burmeister, supra. [143 Mich.App. 379-380, 372 N.W.2d 559.]

In determining whether an article is libelous, it is necessary to read the article as a whole and fairly and reasonably construe it in determining whether a portion of the article is libelous in character. Sanders v. Evening News Ass'n, 313 Mich. 334, 340, 21 N.W.2d 152 (1946); Croton v. Gillis, 104 Mich.App. 104, 108, 304 N.W.2d 820 (1981).

Reading the article as a whole, we believe that it is substantially true; therefore plaintiff's complaint lacks an essential element of her defamation claim, namely falsity. In looking at plaintiff's specific allegations of falsity, for the most part we find no falsehood. Considering as a group the various references to plaintiff's using a "blowtorch" in hairstyling, we note that The Random House College Dictionary, Revised Edition (1984), defines "blowtorch" as follows:

[A] small portable apparatus that gives an extremely hot gasoline flame intensified by air under pressure, used esp. in metalworking.

In looking at the photographic exhibits filed by defendants, we believe that the instrument used by plaintiff in her profession can accurately be described as a blowtorch. ² Accordingly, while the use of the term "blowtorch" as an adjective in connection with references to plaintiff or her hairdressing technique may have been colorful, it was not necessarily inaccurate and certainly not libelous. As for the reference that plaintiff was "dressed for blowtorching duty in a slashed-to-there white jumpsuit," we have examined the photographic exhibits submitted by defendant at the motion hearing and we conclude that reasonable minds could not differ in reaching the conclusion that plaintiff did, in fact, wear a jumpsuit "slashed-to-there."

Finally, while having disposed of the allegedly libelous claims contained in the complaint, we briefly turn to the additional allegations of false statement listed in plaintiff's brief on appeal. In her brief, plaintiff claims that defendants inaccurately described her as being a hairdresser for dogs, giving dogs a Mohawk cut, and using a blowtorch on the dogs. While it appears that plaintiff did do hairdressing on dogs, it is not necessarily certain at this point that she did, in fact, use the blowtorch on the dogs. However, as noted above, plaintiff filed no response to the motion for summary disposition in the trial court and, thus presented no affidavits or other evidentiary showings that the statements in the article were false. Thus, there has been no showing by plaintiff that the statements relating to the dogs were false.

Moreover, inasmuch as it appears undisputed that plaintiff at...