Porter v. Royal Oak

• Decision Date: 01 December 1995
• Docket Number: Docket No. 164109
• Citation: 542 N.W.2d 905,214 Mich.App. 478
• Parties: , 11 IER Cases 798 Mark A. PORTER, Plaintiff-Appellant, v. City of ROYAL OAK, Richard Kemp, John Ball, and William Baldridge, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 905

542 N.W.2d 905

214 Mich.App. 478, 11 IER Cases 798

Mark A. PORTER, Plaintiff-Appellant, v. City of ROYAL OAK, Richard Kemp, John Ball, and William Baldridge, Defendants-Appellees.

Docket No. 164109.

Court of Appeals of Michigan.

Submitted Oct. 3, 1995, at Detroit.

Decided Dec. 1, 1995, at 9:05 a.m.

Released for Publication Feb. 7, 1996.

Mueckenheim & Mueckenheim, P.C. by Robert C. Mueckenheim, Detroit, for plaintiff.

Barlow & Lange, P.C. by Craig W. Lange and Matthew S. Derby, Troy, for defendants.

Before GRIFFIN, P.J., and JANSEN and M.E. CLEMENTS, ^* JJ.

GRIFFIN, Presiding Judge.

Plaintiff appeals as of right an order of the circuit court granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(10). We affirm.

I

On March 30, 1990, plaintiff, Mark Porter, was a sergeant of the Royal Oak Police Department in charge of the midnight shift. At the beginning of this shift, plaintiff was briefed regarding an ongoing situation at the residence of Jerry Heaps. Plaintiff was informed that Mrs. Heaps had filed a criminal sexual conduct complaint against her husband the previous day and that Mr. Heaps had contacted relatives about his intention of committing suicide. Jerry Heaps, who was alone in the residence, was reportedly violent, intoxicated, and in possession of firearms. As the evening progressed, the Royal Oak Police Department received numerous telephone calls regarding the situation. These callers expressed severe concern regarding Mr. Heaps' mental or physical well-being. Along with other information, the callers related the following: (1) Heaps had taken a large number of Tylenol pills and had been drinking vodka all day; (2) Heaps' family had repeatedly sought information about committing Heaps to a mental institution; (3) Heaps' relatives wanted to enter Heaps' house but were afraid because Heaps was violent and possessed weapons; and (4) Heaps' brother heard a popping sound similar to the firing of a small caliber weapon emanate from Heaps' house. ¹ Despite requests from Heaps' family members for police assistance, plaintiff never dispatched any officers to the scene. The next morning, Heaps was found dead in his home. An autopsy disclosed that Heaps had died shortly after midnight from a self-inflicted gunshot wound.

Royal Oak Police Chief Richard G. Kemp ordered an immediate internal investigation. ² Plaintiff was subsequently charged and found responsible for nine different counts of having failed to properly perform his duties as an officer. ³ As a disciplinary action, plaintiff was demoted, suspended, placed on one-year probation, and precluded from holding or applying for certain positions for one year. A memorandum listing the discipline imposed on plaintiff was shown to media representatives. ⁴ Although it is not clear from the record whether any of the stories preceded the issuance of the memorandum, plaintiff's disciplinary proceedings became the subject of at least one television news story and at least three newspaper articles.

Plaintiff filed a labor grievance. Following a hearing, an arbitrator affirmed the disciplinary action after finding sufficient evidence to support the charges and the disciplinary action. Plaintiff thereafter appealed to the circuit court. In a decision that was later affirmed by this Court, the circuit court upheld the arbitrator's decision. See Porter v. Royal Oak, unpublished opinion per curiam of the Court of Appeals, issued April 13, 1995 (Docket No. 163682).

On April 26, 1991, plaintiff filed the present action in the Oakland Circuit Court, claiming that defendants (1) communicated to the media false, noncontextual, and defamatory information; (2) invaded his privacy by publicly disclosing private facts and placing him in a false light; (3) violated public policy by disciplining him for failing to take an action that would have violated Heaps' constitutional rights; and (4) violated provisions of the Employee Right to Know Act, M.C.L. § 423.501 et seq.; M.S.A. § 17.62(1) et seq.

The circuit court granted defendants' motion for summary disposition of the first three counts pursuant to MCR 2.116(C)(10). Plaintiff's claim based on the Employee Right to Know Act (count four) was dismissed pursuant to a stipulation of the parties. ⁵

In granting summary disposition, the lower court ruled that because the truth of the charges against plaintiff had been established in the grievance proceeding, plaintiff was estopped from relitigating the factual basis of the charges. The circuit court dismissed plaintiff's defamation, invasion of privacy, and public disclosure of private fact claims on the ground that truth is an absolute defense. Also, the lower court dismissed plaintiff's violation of public policy claim on the basis that plaintiff had been disciplined for failing to respond to a report of a possible gunshot and drug overdose, not for refusing to break into Heaps' home.

II

A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual support for a claim. Panich v. Iron Wood Products Corp., 179 Mich.App. 136, 139, 445 N.W.2d 795 (1989). In deciding such a motion, the trial court must consider the pleadings, depositions, affidavits, admissions, and other documentary evidence, MCR 2.116(G)(5), and must give the nonmoving party the benefit of every reasonable doubt. Radtke v. Everett, 442 Mich. 368, 373, 501 N.W.2d 155 (1993); Rice v. ISI Mfg., Inc., 207 Mich.App. 634, 635-636, 525 N.W.2d 533 (1994); Morganroth v. Whitall, 161 Mich.App. 785, 788, 411 N.W.2d 859 (1987). Although the court should be liberal in finding genuine issues of material fact, summary disposition is appropriate when the party opposing the motion fails to provide evidence to establish a material factual dispute. McCart v. J. Walter Thompson USA, Inc., 437 Mich. 109, 115, 469 N.W.2d 284 (1991); Mascarenas v. Union Carbide Corp., 196 Mich.App. 240, 243, 492 N.W.2d 512 (1992).

III

Plaintiff argues that the circuit court erred in granting summary disposition in favor of defendants on the ground that plaintiff was collaterally estopped from contesting the factual conclusions made by the arbitrator in the grievance proceeding. We disagree. Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in the prior proceeding. People v. Gates, 434 Mich. 146, 154, 452 N.W.2d 627 (1990); Bullock v. Huster, 209 Mich.App. 551, 556, 532 N.W.2d 202 (1995). This principle likewise applies to factual determinations made during grievance hearings or arbitration proceedings. Fulghum v. United Parcel Service, Inc., 130 Mich.App. 375, 377, 343 N.W.2d 559 (1983), aff'd 424 Mich. 89, 92, 378 N.W.2d 472 (1985); see Lumbermen's Mutual Casualty Co. v. Bissell, 220 Mich. 352, 354, 190 N.W. 283 (1922).

In the present case, we hold that the circuit court correctly ruled that plaintiff was estopped from contesting the determinations made in the grievance proceeding. Because plaintiff is unable to establish facts essential to support his defamation, false light invasion of privacy, and public policy claims, the circuit court correctly granted defendants' motion for summary disposition of these claims.

A Defamation

Plaintiff contends that defendants defamed him when they gave the news media a memorandum that listed the discipline that had been imposed on him. Plaintiff bases this defamation claim on his contention that the charges against him were false. However the arbitrator sustained the charges against plaintiff and the memorandum at issue listed only the charges that had been sustained. In other words, the truth of the memorandum had been established. Because truth is an absolute defense to a defamation claim, Rouch v. Enquirer & News of Battle Creek, 427 Mich. 157, 173-174, 398 N.W.2d 245 (1986); Cochrane v. Wittbold, 359 Mich. 402, 409, 102 N.W.2d 459 (1960); Postill v. Booth Newspapers, Inc., 118 Mich.App. 608, 618, 325 N.W.2d 511 (1982), citing Restatement Torts, 2d, § 558, and plaintiff is estopped from contesting the arbitrator's final ruling that the charges against plaintiff had been sustained, Gates, supra at 154, 452 N.W.2d 627; Fulghum, supra at 377, 343 N.W.2d 559, the circuit court correctly dismissed count one of plaintiff's complaint.

B False Light Invasion of Privacy

Similarly, the circuit court properly dismissed plaintiff's claim of "false light" invasion of privacy on the basis of collateral estoppel. As this Court held in Duran v. Detroit News, 200 Mich.App. 622, 631-632, 504 N.W.2d 715 (1993):

In order to maintain an action for false-light invasion of privacy, a plaintiff must show that the defendant broadcast to the public in general, or to a large number of people, information that was unreasonable and highly objectionable by attributing to the plaintiff characteristics, conduct, or beliefs that were false and placed the plaintiff in a false position.

See also Morganroth, supra at 792-793, 411 N.W.2d 859. In accordance with this standard, this cause of action cannot succeed if the contested statements are true. Morganroth, supra at 793-794, 411 N.W.2d 859. Here, plaintiff alleges only that defendants gave the media a memorandum that listed the charges against him. Because we have already determined that the truth of the memorandum cannot now be contested, plaintiff is unable to show that defendants portrayed him in a false light. Therefore, summary disposition of plaintiff's false light claim was properly granted in defendants' favor. To the extent that plaintiff contends that the media's use of this information caused a false public impression that he caused Heaps' death, we note that defendants cannot be held liable for the characterization of truthful information by the media.

C Public Policy

Plaintiff is also collaterally estopped from...