TERRELL PIERCE V DANIEL SEYMOUR & GROSSMAN PC
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STATE OF MICHIGAN
COURT OF APPEALS
TERRELL PIERCE and DAELYN PIERCE,
UNPUBLISHED
September 18, 1998
Plaintiffs-Appellants,
v
DANIEL, SEYMOUR & GROSSMAN, P.C.,
SCHUYLER SEYMOUR, JR., JAMES L.
EDMONDS, UAW LOCAL 599, and DAVID
YETTAW,
W.
No. 199727
Genesee Circuit Court
LC No. 94-033444 NO
Defendants-Appellees.
Before: Corrigan, C.J., and Cavanagh and Bandstra, JJ.
PER CURIAM.
Plaintiffs appeal as of right the trial court order granting defendants’ motions for summary
disposition pursuant to MCR 2.116(C)(8) and (10). We affirm in part, reverse in part, and remand for
further proceedings.
I
Plaintiffs first argue that the trial court erred in granting summary disposition pursuant to MCR
2.116(C)(8) on the basis that their second amended complaint lacked specificity. A motion for
summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings
alone. This Court reviews de novo a trial court’s decision on a motion for summary disposition pursuant
to MCR 2.116(C)(8) to determine whether the claims are so clearly unenforceable as a matter of law
that no factual development could possibly justify recovery. All factual allegations supporting the claim,
and any reasonable inferences that can be drawn from the facts, are accepted as true. Smith v
Stolberg, ___ Mich App ___, ___; ___ NW2d ___ (Docket No. 202848, issued 8/18/98).
The elements of a libel cause of action are (1) a false and defamatory statement concerning the
plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting to at least negligence on
the part of the publisher, and (4) either actionability of the statement irrespective of
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special harm or the existence of special harm caused by publication. Northland Wheels Roller Skating
Center, Inc v Detroit Free Press, Inc, 213 Mich App 317, 323; 539 NW2d 774 (1995). A
complaint in a libel action must specifically plead the defamatory words complained of. Royal Palace
Homes, Inc v Channel 7 of Detroit, Inc, 197 Mich App 48, 62; 495 NW2d 392 (1992).
After reviewing the complaint, we conclude that the trial court did not err in finding that it is not
sufficiently specific. Plaintiffs quote verbatim blocks of text from the various letters and articles, without
indicating which particular statements are allegedly defamatory. While the passages contain statements
that could be defamatory, they also contain some statements that do not appear to be untrue and other
statements that, even if untrue, are not defamatory. MCR 2.111(B)(1) requires a plaintiff to state “the
specific allegations necessary reasonably to inform the adverse party of the nature of the claims the
adverse party is called on to defend.” The Supreme Court has explained: “Leaving a defendant to
guess upon what grounds plaintiff believes recovery is justified violates basic notions of fair play and
substantial justice.” Dacon v Transue, 441 Mich 315, 329; 490 NW2d 369 (1992). This Court has
held that a complaint in a libel action must specifically plead the defamatory words complained of.
Royal Palace Homes, supra. Because plaintiffs’ complaint does not clearly delineate what statements
are alleged to be false, libelous, and defamatory, it is not sufficiently specific.
II
Plaintiffs next argue that the trial court abused its discretion in refusing to allow them to amend
their complaint. This Court will not reverse a trial court's decision on a motion to amend a complaint
absent an abuse of discretion that results in injustice. Phillips v Deihm, 213 Mich App 389, 393; 541
NW2d 566 (1995).
Amendment is generally a matter of right rather than grace. Patillo v Equitable Life
Assurance Society of the United States, 199 Mich App 450, 456; 502 NW2d 696 (1992). A trial
court should freely grant leave to amend if justice so requires. MCR 2.118(A)(2). Leave to amend
should be denied only for particularized reasons, such as undue delay, bad faith, or dilatory motive on
the movant's part, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party, or where amendment would be futile. Phinney v Verbrugge, 222
Mich App 513, 523; 564 NW2d 532 (1997).
At the October 21, 1996, hearing, the trial court refused to allow plaintiffs to amend their
complaint, stating, “Well, it’s been amended twice now.” However, plaintiffs only amended their
complaint once in response to a court directive. Plaintiffs first amended their complaint to add
defendants UAW, Yettaw, and Braid.
The second amended complaint was filed in response to a trial court order dismissing the first
amended complaint for lack of specificity. In response to this order, plaintiffs filed their second
amended complaint on September 5, 1995. The second amended complaint included the specific
dates, sources, and places of publication, as ordered by the trial court. The complaint also contained
the verbatim blocks of text from the various letters and articles that plaintiffs alleged had been created
and disseminated by defendants.
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After reviewing the record, we conclude that the trial court should have allowed plaintiffs to
amend their complaint. As discussed in Issue I, the trial court correctly found that plaintiffs’ second
amended complaint was not sufficiently specific because it contained too much extraneous material.1
However, while leave to amend may be denied because of repeated failure to cure deficiencies by
amendments previously allowed, Phinney, supra, here plaintiffs essentially created a new deficiency
while attempting to correct a separate one. The trial court dismissed the first amended complaint
because it did not contain enough information; the trial court then dismissed the second amended
complaint because too much information was provided. There is no evidence that plaintiffs did not file
their second amended complaint in good faith, and in fact the trial court did not make a finding of bad
faith. There is no indication in the record that defendants would have been prejudiced by an
amendment. The quotations from the letters and articles included in plaintiffs’ second amended
complaint contained a number of statements which, if false, could well be defamatory. Because leave to
amend should be freely given when justice so requires, we hold that the trial court abused its discretion
in refusing to allow plaintiffs to amend their complaint. See MCR 2.118(A)(2); Phillips, supra. We
therefore remand to the trial court so that plaintiffs may amend their complaint.
III
Plaintiffs next assert that the trial court erred in granting partial summary disposition to Dave
Yettaw, the UAW, and Dean Braid (the UAW defendants) with regard to Documents A, C, J, P, Q,
and X.
A
The trial court granted the UAW defendants’ motion for summary disposition pursuant to MCR
2.116(C)(8) as to Documents A and C on the basis that the second amended complaint did not allege
any involvement by any UAW defendant in these publications.
Plaintiffs argue that, contrary to the trial court’s finding, the complaint did allege involvement by
the UAW defendants in the publication of Document A. On page 22 of the second amended complaint,
subparagraph vii states:
Said document was published by Defendants Daniel, Seymour & Grossman and
Schuyler Seymour thereof when copies of the document and/or the Headlight
newspaper articles of November 10, 1994 was sent out of the law offices of Daniel,
Seymour & Grossman to the managers or directors of all credit unions in the Flint area
particularly including all those credit unions identified in the Flint area Yellowpages [sic].
Such document and statement was further published when sent as an attachment and
exhibit with certain correspondence generated in concert between Schuyler Seymour
and Dave Yettaw sent to the National Credit Union Administration in Chicago Illinois in
October of 1994 and November of 1994 and January of 1995.
Because the complaint clearly alleges that defendant Yettaw had a role in publishing Document A, we
conclude that the trial court clearly erred in granting summary disposition with regard to defendant
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Yettaw on the allegations involving that document. However, because the complaint makes no
allegations regarding defendant UAW Local 599 and defendant Braid, the trial court did not err in
granting summary disposition to these defendants.
With regard to Document C, plaintiffs essentially concede that the second amended complaint
does not allege involvement by any UAW defendant. However, plaintiffs assert that discovery has
revealed that Document C was republished by defendant Yettaw as an attachment to a January 30,
1995, letter to the National Credit Union Administration (NCUA). Plaintiffs therefore seek permission
to amend their complaint. We instruct the trial court to permit plaintiffs to amend their complaint to
include this allegation on remand. See MCR 2.118(A)(2).
B
The trial court granted summary disposition with respect to Documents J, P, Q, and X pursuant
to MCR 2.116(C)(10). The court explained that “the unrebutted affidavit of Dave Yettaw and
deposition of Schuyler Seymour state that the UAW defendants were not involved in the creation and
publication of these documents.”
A motion for summary disposition may be granted pursuant to MCR 2.116(C)(10) when,
except with regard to the amount of damages, there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Giving the benefit of reasonable doubt to the
nonmovant, the trial court must determine whether a record might be developed that would leave open
an issue upon which reasonable minds might differ. Moore v First Security Casualty Co, 224 Mich
App 370, 375; 568 NW2d 841 (1997).
Plaintiffs contend that the affidavit and deposition testimony were in fact rebutted. Plaintiffs
claim that they attached as Exhibit C to their response to the motion for summary disposition a January
30, 1995, letter by Yettaw to the NCUA that specifically referenced and attached Documents J, P, Q,
and X.
We have examined plaintiffs’ response to the motion for summary disposition and found no
Exhibit C, nor is the aforementioned letter attached. However, a January 30, 1995, letter by Yettaw to
the NCUA is Document S in the second amended complaint. The letter specifically lists more than
thirty enclosed documents. Documents J, P, Q, and X may have been among these items. For
example, the first enclosure mentioned by Yettaw is a Summary of Witnesses; Document X appears to
be a list of witnesses and summary of what they could testify to. Item 9 on the list is “Six letters sent to
C[redit ]U[nion]’s Board of Directors.” Document J is a letter to the board of directors of the Security
Federal Credit Union (SFCU). Documents P and Q are letters to the NCUA dated, respectively,
October 20, 1994, and November 15, 1994; these are specifically mentioned in Yettaw’s letter as
Items 19a and b.
On this record, we conclude that Yettaw’s affidavit and Seymour’s deposition merely raise
questions of fact regarding the UAW defendants’ involvement in the publication of Documents J, P, Q,
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and X. Accordingly, the trial court erred in granting the UAW defendants’ motion for partial summary
disposition with respect to these documents.
IV
Plaintiffs assert that the trial court erred in granting summary disposition to defendant Braid on
the basis that he could not have been negligent because he did not have discretion not to publish
Yettaw’s articles. Plaintiffs maintain that a genuine issue of material fact exists as to whether Braid had
control of the content of Headlight, Local 599’s newspaper.
The trial court relied on Yettaw v Local Union 599, UAW, UAW Public Review Board, Case
No. 942 (1992). However, we conclude that the trial court read Yettaw too broadly. Yettaw did not
involve editorial decisions to strike defamatory statements in an officer’s column, but rather editorial
decisions to suppress a union officer’s opinions regarding issues “which may be the subject of legitimate
debate among union members.” Yettaw, supra at 7. Yettaw does not stand for the proposition that
columns by union officers are not subject to editing, but rather that the editor may not censor the
viewpoints of union officers on matters of legitimate discussion among union members.
Furthermore, the free speech principles emphasized in Yettaw do not comprehend an absolute
right to make defamatory statements. The Constitution merely places limits on the application of the
state law of defamation so that protected speech is not discouraged. See Harte-Hanks
Communications, Inc v Connaughton, 491 US 657, 686; 109 S Ct 2678; 105 L Ed 2d 562 (1989).
These limits vary, depending on considerations such as whether the plaintiff is a public or private figure
and whether the speech at issue is of public concern. See Milkovich v Lorain Journal Co, 497 US 1,
14-16; 110 S Ct 2695; 111 L Ed 2d 1 (1990); Philadelphia Newspapers, Inc v Hepps, 475 US
767, 774-775; 106 S Ct 1558; 89 L Ed 2d 783 (1986). Therefore, the elements of a cause of action
for defamation, and the plaintiff’s burden of proof, are structured to balance the competing First
Amendment interest in protecting the freedom of speech with a State’s interest in ensuring that a person
may be compensated for injury to his reputation. See Milkovich, supra at 22-23; Locricchio v
Evening News Ass’n, 438 Mich 84, 117-122; 476 NW2d 112 (1991), cert den 503 US 907; 112 S
Ct 1267; 117 L Ed 2d 495 (1992). Accordingly, even under a broad reading of Yettaw, the editor of
a union publication may remove libelous material from a column because the principle of freedom of
expression does not include the right to make defamatory statements.
In Michigan, all persons who are “‘actively connected with and engaged in the publication of a
libel are responsible for the results.’” Bowerman v Detroit Free Press, 279 Mich 480, 491; 272 NW
876 (1937), quoting Johnson v Gerasimos, 247 Mich 248, 252; 225 NW 636 (1929). Thus, an
editor is generally liable for defamatory statements contained in his newspaper because he has extensive
supervisory control over the publication. 53 CJS § 118(c), Libel & Slander, p 202. We therefore
conclude that the trial court erred in granting summary disposition to defendant Braid.
V
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Plaintiffs next argue that the trial court erred in granting summary disposition on their claims of
intentional interference with business and contractual relationships, fraud, injurious falsehood, invasion of
privacy, and intentional infliction of emotional distress. We agree.
Plaintiffs allege that defendants disseminated letters to SFCU, to other Flint-area credit unions,
and to various trade associations and regulatory agencies accusing plaintiffs of unethical and illegal
conduct. The letters were mailed in SFCU envelopes and carried signatures such as “Concerned Union
Employees of Security Federal Credit Union,” “Security Federal Credit Union Management Staff,” and
“Group of Very Concerned Members.” Others were attributed to “the hourly employees of Security
Federal Credit Union;” still others were anonymous.
The trial court dismissed the claims of intentional infliction of emotional distress, invasion of
privacy, and tortious interference with a business relationship because they were based on the allegedly
defamatory publications, and the court had already granted summary disposition on the defamation
count. However, the trial court erred in dismissing these claims, as they do not depend upon the falsity
of the statements in the publications.2 Plaintiffs’ allegations on these counts were sufficient to survive a
motion for summary disposition pursuant to MCR 2.116(C)(8).
VI
Plaintiffs next assert that the trial court erred in granting summary disposition to the UAW
defendants, who only sought summary disposition as to twenty-one of the forty-one documents at issue,
and to defendant Edmonds, who never moved for summary disposition. Because of our resolution of
plaintiffs’ previous claims, it is unnecessary for us to address this claim. However, we briefly note that,
contrary to their argument, plaintiffs were given adequate notice of the charge that the complaint lacked
specificity by the Seymour defendants’ motion. Plaintiffs could not have reasonably assumed that the
allegations in Counts One and Two lacked specificity as to the Seymour defendants but not as to the
other defendants. Moreover, the UAW defendants filed a concurrence to the Seymour defendants’
motion in September 1996, several weeks before the October 18, 1996, hearing. Accordingly,
plaintiffs received adequate notice of the basis for the grant of summary disposition.
VII
Finally, plaintiffs contend that the trial court erred in denying their request for sanctions for
discovery violations. This Court reviews the decision whether to impose sanctions for discovery
violations for an abuse of discretion. Beach v State Farm Mutual Automobile Ins Co, 216 Mich App
612, 618; 550 NW2d 580 (1996). An abuse of discretion exists when the result is so palpably and
grossly violative of fact and logic that it evidences perversity of will or the exercise of passion or bias
rather than the exercise of discretion. Dacon, supra at 329.
Plaintiffs allege that defendants Seymour and Yettaw gave false answers to interrogatories and
denied under oath authorship or knowledge of the letters that were disseminated until they were
confronted with documents retrieved from the dumpster at the offices of Daniel, Seymour & Grossman
that had been authenticated by a handwriting expert. Plaintiffs also claim that, contrary to the trial
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court’s direct order, defendants continued to alter some documents and purge others on Daniel,
Seymour & Grossman’s computers, as evidenced by the deposition testimony of Seymour’s secretary.
The trial court acknowledged that defendants’ behavior raised some concerns, but concluded that the
issue was rendered moot by his grant of summary disposition to defendants.
We are unable to review this issue because plaintiffs did not make a proper record in the trial
court. In asserting that defendants Seymour and Yettaw committed perjury and engaged in discovery
violations, plaintiffs rely on answers to interrogatories and deposition testimony that are not contained in
the lower court record. In their brief on appeal, plaintiffs cite their two motions for sanctions; however,
in these motions plaintiffs merely typed in excerpts from the interrogatories and testimony to the motions
without attaching the relevant pages. However, because plaintiffs raise disturbing allegations of perjury
and flagrant discovery abuses, we instruct the trial court to fully address the merits of this issue on
remand.3
Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain
jurisdiction. No taxable costs pursuant to MCR 7.219, no party having prevailed in full.
/s/ Maura D. Corrigan
/s/ Mark J. Cavanagh
/s/ Richard A. Bandstra
1
In granting defendants’ motions for summary disposition, the trial court relied on Royal Palace
Homes, supra. However, the trial court does not appear to have realized that the Royal Palace
Homes Court held that the plaintiffs should be given an opportunity to amend their complaint. See id. at
57-58.
2
The tort of intentional infliction of emotional distress has four elements: (1) extreme and outrageous
conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress. Haverbush v
Powelson, 217 Mich App 228, 233-234; 551 NW2d 206 (1996).
The tort of invasion of privacy is based on a common-law right to privacy, which is said to
protect against four types of invasion of privacy: (1) intrusion upon the plaintiff's seclusion or solitude,
or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3)
publicity that places the plaintiff in a false light in the public eye; and (4) appropriation, for the
defendant's advantage, of the plaintiff's name or likeness. Doe v Mills, 212 Mich App 73, 79-80; 536
NW2d 824 (1995).
The elements of tortious interference with a business relationship are the existence of a valid
business relationship or expectancy, knowledge of the relationship or expectancy on the part of the
defendant, an intentional interference by the defendant inducing or causing a breach or termination of the
relationship or expectancy, and resultant damage to the plaintiff. BPS Clinical Laboratories v Blue
Cross & Blue Shield of Michigan, 217 Mich App 687, 698-699; 552 NW2d 919 (1996), lv den 456
Mich 879 (1997), cert den ___ US ___; 118 S Ct 1178; 140 L Ed 2d 186 (1998).
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3
We disagree with the trial court’s conclusion that plaintiffs’ motion for sanctions was rendered moot by
the court’s grant of defendants’ motions for summary disposition. If defendants’ conduct was as
egregious as plaintiffs allege, at a minimum a sanction could be imposed to reimburse plaintiffs for the
costs incurred in filing motions related to the discovery abuses, as well as the fees for the handwriting
expert. Moreover, while defendants’ conduct may be a proper subject for the consideration of the
Attorney Grievance Commission, it does not follow that the trial court cannot also impose sanctions on
defendants if it is shown that they committed perjury and violated a court order prohibiting the
destruction or alteration of computer files.
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