Stablein v. Schuster , 183 Mich. App. 477 ( 1990 )

183 Mich. App. 477 (1990) 455 N.W.2d 315

STABLEIN
v.
SCHUSTER

Docket No. 112815.

Michigan Court of Appeals.

Decided February 8, 1990.

Levin, Levin, Garvett & Dill (by Erwin B. Ellmann and Nancy L. Kahn), for plaintiffs.

Jane Briggs-Bunting, for Voice Communications Corporation.

Before: SULLIVAN, P.J., and DOCTOROFF and REILLY, JJ.

PER CURIAM.

In this defamation action, plaintiffs, members of the East China Education Association, appeal as of right the September 19, 1988, order of the St. Clair Circuit Court granting summary disposition to defendants Adams Publishing Corporation and Voice Communications Corporation pursuant to MCR 2.116(C)(7) on the grounds of the statutory immunity of the official proceedings statute, MCL 600.2911(3); MSA 27A.2911(3). Final judgment was entered as to defendants on September 19, 1988. Defendant Adams Publishing Corporation was subsequently dismissed by stipulation. Defendant Voice Communications Corporation, hereinafter defendant, cross appeals the trial court's denial of attorney fees and costs. We affirm.

On March 9, 1988, Jon N. Schuster, Superintendent of Schools for the East China Township School District, sent a letter to Robert Beattie, President of the East China Township School District Board of Education. In this letter, Mr. Schuster turned down a contract extension made by the board of education and made allegedly libelous statements concerning the leadership of the East China Education Association, which included plaintiffs. On March 14, 1988, Beattie read the letter at the regularly scheduled board of education meeting. On March 23, 1988, defendant published excerpts from the letter. Defendant subsequently refused to print a requested retraction. On July 11, 1988, plaintiffs brought suit, alleging that they had been libeled by Schuster's accusations of dishonesty, character assassination, intimidation and anarchism.

Defendant moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10). Defendant also requested costs pursuant to MCR 2.114(E). In support of its motion, defendant submitted a copy of Schuster's letter, minutes of the board meeting, the allegedly libelous article, and affidavits of co-owner Tom Stanton and reporter Connie Jurmo. Stanton had assigned reporter Jurmo to cover the East China Township school board meeting. Jurmo wrote the article which was subsequently published and which quoted portions of Schuster's letter.

Plaintiffs claim that the trial court erred in granting summary disposition because there were fact questions which should have gone to a jury. We disagree.

MCR 2.116(C)(7) provides that summary disposition is proper when a claim is barred because of immunity granted by law. The standard under which this Court reviews summary disposition motions pursuant to MCR 2.116(C)(7) is that this Court accepts all of the plaintiff's well-pled factual allegations as true and construes them most favorably to the plaintiff. Stroud v Ward, 169 Mich. App. 1, 4; 425 NW2d 490 (1988), lv den 432 Mich. 852 (1989).

Libel may be defined as a statement of and concerning the plaintiff which is false in some material respect and is communicated to a third person by written or printed words and has a tendency to harm the plaintiff's reputation. Fisher v Detroit Free Press, Inc, 158 Mich. App. 409, 413; 404 NW2d 765 (1987), lv den 428 Mich. 914 (1987). The initial determination of whether a privilege exists is one of law for the court. Shannon v Taylor AMC/Jeep, Inc, 168 Mich. App. 415, 419; 425 NW2d 165 (1988).

When summary disposition was granted in this case, MCL 600.2911(3); MSA 27A.2911(3) stated in pertinent part:

No damages shall be awarded in any libel action brought against a reporter, editor, publisher, or proprietor of a newspaper for the publication in it of a fair and true report of any public and official proceeding, or for any heading of the report which is a fair and true headnote of the article published. This privilege shall not apply to a libel which is contained in any matter added by any person concerned in the publication or contained in the report of anything said or done at the time and place of the public and official proceeding which was not a part of the public and official proceeding.

In Rouch v Enquirer & News of Battle Creek, 427 Mich. 157, 167; 398 NW2d 245 (1986), reh den 428 Mich. 1207 (1987), the Court quoted this Court's opinion in McCracken v Evening News Ass'n, 3 Mich. App. 32, 38-39; 141 NW2d 694 (1966), as follows:

The statute protects newspaper publishers if the article is a fair and true report of the public and official proceeding. The fact that the reporter herein relied on the word of another as to the nature of the complaint and warrant is immaterial. The statute does not command the reporter to obtain his information from the official court records. At his risk, and at the risk of his publisher, he may rely upon the word of another as to the contents of the complaint and warrant, and that it will be so issued if it has not already been. If the information thus obtained and published does not substantially represent the matter contained in the court records, then the question arises as to whether or not the publisher has abused his privilege. The abuse of the privilege is a question of fact for the trier of fact to determine.

In McCracken, p 39, this Court distinguished Lawrence v Fox, 357 Mich. 134; 97 NW2d 719 (1959), as "a case not involving the specific statutory privilege herein afforded publishers over the report of public and official proceedings, but dealing with the common-law privilege afforded publishers in other instances of alleged libel."

This case, like McCracken and unlike Lawrence, involves the specific statutory privilege afforded to publishers over the report of public and official proceedings. In this case, we agree with the circuit court that, having accurately reported the contents of a letter which was read at the school board meeting, defendant is statutorily immune from liability. The immunity is a qualified one, but defendant has met the qualifications that the report must be fair and true. Plaintiffs do not dispute that the letter was read at the meeting and that defendant accurately excerpted it in the newspaper. The circuit court correctly determined that the application of the privilege was a question of law and correctly determined that defendant was immune.

Plaintiffs' claim that the school board meeting is not a public and official proceeding has no merit. See Michigan's Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq.; and the School Code, MCL 380.1 et seq.; MSA 15.4001 et seq. Contrary to plaintiffs' argument, the Supreme Court in Rouch did not restrict the "public and official proceedings" privilege to judicial proceedings. In Rouch, p 166, the Court specifically acknowledged that the "statute ... is not limited to judicial proceedings, but refers to `any public and official proceeding.'"

Plaintiffs' claim of conspiracy, because it is raised for the first time on appeal, is not properly before this Court. Providence Hospital v National Labor Union Health & Welfare Fund, 162 Mich. App. 191, 194; 412 NW2d 690 (1987). In any case, the statute makes it clear that defendant's motivation is irrelevant if a fair and true report is made of the proceeding. Further, logic dictates that the claim of conspiracy to defame cannot survive where there is no underlying defamation. See Temborius v Slatkin, 157 Mich. App. 587, 599-600; 403 NW2d 821 (1986).

Defendant claims that the trial court erred when it tacitly denied defendant's motion for costs and attorney fees and that defendant is entitled to costs and attorney fees on appeal pursuant to MCR 7.216(C). Defendant appears to argue that plaintiffs' legal position was devoid of merit and, therefore, frivolous pursuant to MCL 600.2591(3)(a) (iii); MSA 27A.2591(3)(a)(iii). We disagree.

A trial court's finding that a plaintiff's claim is not frivolous is governed by the clearly erroneous standard. DeWald v Isola, 180 Mich. App. 129, 134; 446 NW2d 620 (1989). In this case, while plaintiffs' arguments fail, given the Supreme Court's opinion in Rouch, we hesitate to conclude that plaintiffs' claim does not represent a good-faith argument for the extension or modification of existing law. MCR 2.114(D)(2). Nor do we find that plaintiffs' claim was intended to harass or needlessly increase the cost of litigation. MCR 2.114(D)(3). For these same reasons, we do not impose sanctions pursuant to MCR 7.216(C).

Affirmed.