RUPERT A SMITH V LEE R WINN

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STATE OF MICHIGAN COURT OF APPEALS RUPERT A. SMITH, UNPUBLISHED November 27, 2001 Plaintiff-Appellant, v No. 223954 Alcona Circuit Court LC No. 99-010166-NZ LEE R. WINN, Defendant-Appellee. Before: O’Connell, P.J., and Sawyer and Smolenski, JJ. PER CURIAM. Plaintiff appeals by right the lower court’s dismissal of his defamation claim by a grant of summary disposition under MCR 2.116(C)(8) for defendant. Plaintiff subsequently moved for reconsideration and leave to amend, both of which were denied. We affirm. Plaintiff first asserts that the trial court erred in granting summary disposition under MCR 2.116(C)(8), because he had sufficiently pleaded the elements of actual malice. A trial court’s grant or denial of summary disposition is reviewed de novo. Garvelink v The Detroit News, 206 Mich App 604, 607; 522 NW2d 883 (1994). Although we find that plaintiff pleaded defamation with sufficient specificity, the allegations in the complaint, accepted as true, do not state any actionable claims, therefore the trial court properly granted summary disposition. A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint, ABB Paint Finishing Co v National Union Fire Ins Co, 223 Mich App 559, 561; 567 NW2d 456 (1997), and determines whether the plaintiff’s pleadings have alleged a prima facie case. Garvelink, supra at 607. A court may only grant an MCR 2.116(C)(8) motion where the claim is so clearly unenforceable as a matter of law that no factual development could possible justify recovery. Simko v Blake, 448 Mich 648, 654; 532 NW2d 842 (1995); ABB Paint, supra at 561; Garvelink, supra at 608. The motion is reviewed on the pleadings alone, and all factual allegations contained in the complaint must be accepted as true. Simko¸ supra at 654; Dampier v Wayne Co, 233 Mich App 714, 721; 592 NW2d 809 (1999). The trial court ruled that plaintiff had not pleaded actual malice with sufficient specificity, contrary to Royal Palace Homes v Channel 7 of Detroit, Inc, 197 Mich App 48, 52; 495 NW2d 392 (1992). General allegations that privileged statements were false or malicious are insufficient. Kefgen, supra at 624. A plaintiff must specify which statements are false and defamatory in order to put the defendant on notice to defend the action. Royal Palace Homes, -1- supra at 56. We find that plaintiff did include the allegedly defamatory statements within his pleading. Insofar as the grounds for granting summary disposition were based on an insufficient pleading of actual malice, the trial court was incorrect, particularly because the amended complaint pleaded actual malice with great particularity. The trial court also based its grant of summary disposition on the grounds that plaintiff was a public figure and all statements concerning a public figure have a qualified privilege. A court reviewing a defamation claim must make an independent examination of the record to avoid intrusions into the field of free expression protected by the First Amendment. Kefgen v Davidson, 241 Mich App 611, 617; 617 NW2d 351 (2000); Ireland v Edwards, 230 Mich App 607, 613; 584 NW2d 632 (1998). The reviewing court must specifically determine whether a privilege exists that protects the communication. Absolute privilege does not apply in the present case because none of the narrow situations it is applicable to, communications made during legislative and judicial proceedings and communications among military officers, are present. Kefgen, supra at 618. A communication can also have a qualified privilege. This applies when a defamatory communication is made concerning a public figure or official. Collins v Detroit Free Press, Inc, 245 Mich App 27, 32; 627 NW2d 5 (2001); Kefgen, supra at 623. A public figure or official alleging defamation must prove by clear and convincing evidence that it was made with actual malice. Collins, supra at 32; Kefgen, supra at 623. Actual malice exists where the communication was known by the publisher to be false or was made with reckless disregard for the truth. Collins, supra at 32; Kefgen, supra at 623. As an elected township trustee, plaintiff is a public official. Therefore, the communications defendant made about him have a qualified privilege and actual malice is an element of his action. Because a motion for summary disposition under MCR 2.116(C)(8) is reviewed on the pleadings alone, Simko, supra at 648, the inquiry is focused on the allegations in the pleading rather than the evidence. Accepting all the allegations in the complaint as true, we must determine whether the statements are actionable. Ireland, supra at 616. To be actionable, the statement must be provable as false. Id. Actionable statements must be read in context to be reasonably understood as stating facts about the plaintiff. Id. at 617-618. Statements of opinion are generally not actionable unless they state actual facts about a person. Id. at 616. None of the allegedly defamatory statements published by defendant are actionable. The Supreme Court has established “an extremely high” standard for statements about a public official to be actionable. In Greenbelt Cooperative Publishing Ass’n, Inc v Bresler, 398 US 6; 90 S Ct 1537; 26 L Ed 2d 6 (1970), the United States Supreme Court recognized that some statements, read in context, are not capable of defamatory interpretation, “The word ‘blackmail’ in these circumstances was not slander when spoken, and not libel when reported . . . . [E]ven the most careless reader must have perceived that the word was no more than rhetorical hyperbole.” Id. at 13-14. None of the allegedly defamatory statements contained in the complaint or the amended complaint are actionable under the Greenbelt, supra at 13-14, standard. Each of statements are classifiable as not stating actual facts about plaintiff or as mere “rhetorical hyperbole.” Id. Michigan courts have held that all claims relating to defamation of a public figure, such as injurious falsehood and invasion of privacy/false light, involve the element of actual malice. -2- Collins, supra at 30, 37; Ireland, supra at 624. Therefore, defendant’s remaining claims fail on similar grounds. Collins, supra at 30, 37; Ireland, supra at 624. Likewise, plaintiff asserts that the trial court committed “palpable error” in granting its own motion for summary disposition under MCR 2.116(C)(8). A trial court may sua sponte grant a motion for summary disposition after giving the adverse party proper notice. Haji v Prevention Ins Agency, Inc, 196 Mich App 84, 90; 492 NW2d 460 (1992); Routman v Automatic Data Processing, Inc, 873 F2d 970, 971 (CA 6, 1989). Plaintiff was on notice for four months that the court was skeptical about the legal adequacy of his pleadings and claims; it cannot be said that he lacked fair notice or a chance to respond. Therefore, the trial court did not abuse its discretion in denying plaintiff’s motion to reconsider. Plaintiff next argues that the trial court’s refusal to grant defendant’s motions for reconsideration and rehearing constituted an abuse of discretion warranting reversal. A trial court’s denial of a motion for reconsideration or rehearing is reviewed for an abuse of discretion. American Transmission, Inc v Channel 7 of Detroit, Inc, 239 Mich App 695, 709; 609 NW2d 607 (2000). We disagree with plaintiff and affirm the ruling of the trial court. To demonstrate that the trial court abused its discretion, plaintiff must show that the trial court made a palpable error that misled the parties and the court, or that the summary disposition motion would have been denied if the error were corrected. American Transmission, supra at 709; Charbeneau v Wayne Co Hosp, 158 Mich App 730, 733; 405 NW2d 151 (1987). Plaintiff claims that defendant misled the trial court into erroneously interpreting Royal Palace Homes, supra at 48, and Gonyea v Motor Parts Federal Credit Union, 192 Mich App 74; 480 NW2d 297 (1991), to hold that plaintiff had not pleaded actual malice with sufficient specificity. As discussed, the trial court was incorrect in ruling that plaintiff did not plead actual malice with sufficient specificity, but the trial court properly dismissed plaintiff’s case on other grounds. Plaintiff also claims that the trial court’s denial of an oral argument for the summary disposition motion was error, the correction of which would result in a different outcome. There is no abuse of discretion where the plaintiff’s motion for reconsideration is based on facts or theories that could have been pleaded or argued before the court’s original order. Charbeneau, supra at 733. Plaintiff would have to show that any additional facts or theories could have been presented to the trial court at the time of its original order of dismissal, and that the information was not available to him at that time. American Transmission, supra at 710. Plaintiff makes no such showing. The trial court’s decision is affirmed because there was no abuse of discretion in denying plaintiff’s motion for reconsideration or rehearing. Plaintiff finally contends that the trial court abused its discretion in refusing to grant him leave to amend his pleadings, because leave should be freely granted and is a legal right under Midura v Lincoln Consolidated Schools, 111 Mich App 558; 314 NW2d 691 (1981). A trial court’s decision to grant or deny a motion for leave to amend a complaint pursuant to MCR 2.118(A)(2) will not be reversed absent an abuse of discretion. Dampier, supra at 721; Price v Long Realty, Inc, 199 Mich App 461, 469; 502 NW2d 337 (1993). As previously held, none of the statements alleged by plaintiff were actionable, and the record discloses that the other statements that plaintiff could have alleged were likewise not actionable under the Greenbelt standard. Accordingly, we find that the trial court correctly denied plaintiff’s motion to amend -3- his complaint, because any amendment would have resulted in a repeated failure to cure the defects in the pleadings. Affirmed. /s/ Peter D. O’Connell /s/ David H. Sawyer /s/ Michael R. Smolenski -4-

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