STEVE MARK FREUND V JEFFREY JOHN SILAGY
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
STEVEN MARK FREUND,
UNPUBLISHED
May 14, 2002
Plaintiff-Appellant,
v
No. 228974
Iosco Circuit Court
LC No. 00-002359-CZ
JEFFREY JOHN SILAGY and MICHIGAN
DEPARTMENT OF ENVIRONMENTAL
QUALITY,1
Defendants-Appellees.
Before: Saad, P.J., and Owens and Cooper, JJ.
PER CURIAM.
Plaintiff appeals as of right from a trial court order granting defendant Silagy’s motion
for summary disposition, and the trial court’s denial of his motions for rehearing and amendment
of his complaint. We affirm.
In 1997, defendant Silagy (“defendant”), acting as an employee of defendant DEQ, filed
a “statement in support of complaint for warrant” with the local prosecutor and alleged that
plaintiff had deposited “fill” in a wetland parcel without a permit, in violation of MCL
324.30304(a). Thereafter, the prosecutor filed a misdemeanor complaint against plaintiff.
Ultimately, the prosecutor’s motion for nolle prosequi was granted, and the criminal charge was
dismissed. Plaintiff filed the instant lawsuit alleging various misconduct by defendant in
pursuing the criminal charge against plaintiff.
The trial court granted defendant Silagy’s motion for summary disposition as to each
count in plaintiff’s complaint pursuant to MCR 2.116(C)(8) and (10), and therefore dismissed
plaintiff’s complaint. Following the dismissal of his complaint, plaintiff moved for rehearing
and to allow amendment of his complaint. The trial court denied both motions.
Plaintiff contends that the trial court erred by granting defendant’s motion for summary
disposition. Generally, we review de novo a trial court’s ruling on a motion for summary
1
During the early stages of the summary disposition hearing, plaintiff stipulated to the dismissal
of defendant Michigan Department of Environmental Quality (“defendant DEQ”).
-1-
disposition. Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). In regard to a
motion for summary disposition pursuant to MCR 2.116(C)(8), the Beaudrie Court explained:
A motion for summary disposition brought under MCR 2.116(C)(8) tests the legal
sufficiency of the complaint on the basis of the pleadings alone. The purpose of
such a motion is to determine whether the plaintiff has stated a claim upon which
relief can be granted. The motion should be granted if no factual development
could possibly justify recovery. [Beaudrie, supra at 129-130.]
“All well-pleaded facts are accepted as true and are construed in the light most favorable to the
nonmoving party.” Madejski v Kotmar Ltd, 246 Mich App 441, 444; 633 NW2d 429 (2001).
In reviewing a motion for summary disposition brought pursuant to MCR 2.116(C)(10),
we consider “the affidavits, pleadings, depositions, admissions, and documentary evidence filed
in the action or submitted by the parties in the light most favorable to the party opposing the
motion.” Haliw v Sterling Heights, 464 Mich 297, 302; 627 NW2d 581 (2001). “Summary
disposition may be granted if the evidence demonstrates that there is no genuine issue with
respect to any material fact, and the moving party is entitled to judgment as a matter of law.” Id.
As a preliminary matter, plaintiff contends that the trial court erred as a matter of law by
deciding the summary disposition motion based “solely” on the fact that plaintiff did not file any
affidavits to counter defendant’s affidavit. Our review of the trial court’s ruling, however,
reveals that the trial court did not base its ruling on the “fact” that plaintiff did not file an
affidavit to counter defendant’s affidavit. Instead, the trial court properly based its ruling on
either plaintiff’s pleading deficiencies, MCR 2.116(C)(8), or plaintiff’s failure to present
sufficient facts to create a material factual dispute, MCR 2.116(C)(10).
In addition, MCR 2.116(G)(4) states that the adverse party in a motion for summary
disposition pursuant to MCR 2.116(C)(10), “may not rest upon the mere allegations or denials of
his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific
facts showing that there is a genuine issue for trial.” The court rule further provides: “If the
adverse party does not so respond, judgment, if appropriate, shall be entered against him or her.”
MCR 2.116(G)(4). Thus, to the extent that the trial court granted defendant’s motion for
summary disposition pursuant to MCR 2.116(C)(10), plaintiff’s failure to counter defendant’s
motion for summary disposition and affidavit could properly lead to dismissal of plaintiff’s
causes of action, if “appropriate.”
Therefore, we must consider whether the trial court, as a matter of law, properly
dismissed each of plaintiff’s ten counts: (i) injurious falsehood; (ii) false arrest; (iii) false
imprisonment; (iv) malicious prosecution; (v) abuse of process; (vi) defamation; (vii) violation of
plaintiff’s right of due process of law under the Michigan Constitution; (viii) intentional
infliction of emotional distress; (ix) fraud; and (x) discrimination.
During the hearing on defendant’s motion for summary disposition, plaintiff conceded
that counts (vii) and (x) were rendered moot by the dismissal of defendant DEQ. In addition,
plaintiff conceded that the defamation count was untimely pursuant to the one-year statute of
limitation, MCL 600.5805(8). Having conceded the lack of merit in these counts below, plaintiff
-2-
may not challenge the trial court’s dismissal of these counts on appeal.
Perlmutter, 222 Mich App 513, 544; 564 NW2d 532 (1997).
See Phinney v
In regard to false imprisonment, MCL 600.5805(2) provides for a two-year statute of
limitation “for an action charging . . . false imprisonment.” In Meda v. City of Howell, 110 Mich
App 179, 186; 312 NW2d 202 (1981), we applied a two-year statute of limitation to a false
imprisonment case based on a purported false arrest. Here, plaintiff’s complaint alleged that he
was incarcerated for several hours on May 14, 1997. Plaintiff did not, however, commence his
lawsuit until January 18, 2000. Accordingly, the false arrest and false imprisonment counts were
properly dismissed as time-barred pursuant to MCL 600.5805(2).2
In Kollenberg v Ramirez, 127 Mich App 345, 352; 339 NW2d 176 (1983), quoting 3
Restatement Torts, 2d § 623A, p 334, we recognized the tort of injurious falsehood:
One who publishes a false statement harmful to the interests of another is subject
to liability for pecuniary loss resulting to the other if
(a) he intends for publication of the statement to result in harm to interests
of the other having a pecuniary value, or either recognizes or should recognize
that it is likely to do so, and
(b) he knows that the statement is false or acts in reckless disregard of its
truth or falsity.
However, to avoid the one-year statute of limitation for defamation actions, MCL 600.5805(5), a
plaintiff alleging injurious falsehood must also plead special damages. Kollenberg, supra at 355.
“General personal damages for injury to plaintiff’s professional reputation are not recoverable in
the injurious falsehood action.” Id. Here, plaintiff’s complaint did not plead special damages,
but instead sought to recover only general personal damages. Accordingly, plaintiff’s complaint
was insufficient to defeat the general one-year statute of limitation that applies to defamation
actions, MCL 600.5805(8), and dismissal of this count was “appropriate” as a matter of law
pursuant to either MCR 2.116(C)(7) or MCR 2.116(C)(8). See Jory, supra at 425.
In regard to malicious prosecution, our Supreme Court explained that a plaintiff has the
deliberately “difficult” burden of proving:
(1) that the defendant has initiated a criminal prosecution against him, (2) that the
criminal proceedings terminated in his favor, (3) that the private person who
instituted or maintained the prosecution lacked probable cause for his actions, and
(4) that the action was undertaken with malice or a purpose in instituting the
criminal claim other than bringing the offender to justice. [Matthews v Blue
Cross & Blue Shield of Michigan, 456 Mich 365, 377-378; 572 NW2d 603
2
Where a motion for summary disposition is based on an expired statute of limitation, the
relevant court rule is MCR 2.116(C)(7). Nevertheless, we may affirm where the trial court
reaches the right result, but for the wrong reason. People v Jory, 443 Mich 403, 425; 505 NW2d
228 (1993).
-3-
(1998).]
Unless there is a disputed question of fact, the question of probable cause in a malicious
prosecution action is a question of law for the court to determine. Id. at 380. “‘To constitute
probable cause . . ., there must be such reasonable ground of suspicion, supported by
circumstances sufficiently strong in themselves to warrant an ordinarily cautious man in the
belief that the person arrested is guilty of the offense charged.’” Id. at 387, quoting Wilson v
Bowen, 64 Mich 133, 138; 31 NW 81 (1887).
Here, there is no dispute that defendant had a factual basis to believe that a wetland was
filled by somebody—the only question being the identity of the perpetrator. Defendant’s
affidavit established that he mistakenly thought that plaintiff was the individual responsible for
placing fill on the wetland area. Indeed, defendant noted that plaintiff had strongly asserted that
he was the contact person for any issues regarding the wetland and diligently protested
defendant’s involvement. At most, plaintiff’s complaint makes conclusory allegations regarding
defendant’s purported knowledge of the identity mistake. Moreover, although defendant may
have negligently overlooked evidence to the contrary, we believe that there was sufficient
evidence at the time plaintiff was charged to support a reasonable suspicion that plaintiff had
ordered the fill—even though additional facts later determined this to be inaccurate. Indeed, it
was only during the second interview of Greg Michalski that defendant learned, or perhaps
realized, that plaintiff had not ordered the fill. Thus, we do not believe that there was a material
factual dispute concerning the “malice” element; therefore, the trial court did not err as a matter
of law by dismissing plaintiff’s malicious prosecution cause of action.
In regard to plaintiff’s fraud count, the trial court dismissed the count by noting that
plaintiff failed to plead that he relied to his detriment on a false statement by defendant. Indeed,
among the elements required for a prima facie case of fraud is that the plaintiff acted in reliance
upon a misrepresentation. M&D, Inc v WB McConkey, 231 Mich App 22, 27; 585 NW2d 33
(1998). Here, plaintiff’s complaint sets forth several conclusory allegations that defendant made
false statements, but the complaint never alleged that he relied on the falsity of these statements.
Accordingly, this count could have been dismissed based solely on MCR 2.116(C)(8) because
the complaint failed to state a claim upon which relief could be granted. Alternatively, because
the record below did not create any factual dispute regarding this missing element, dismissal of
fraud count was “appropriate” pursuant to MCR 2.116(C)(10).
The trial court dismissed plaintiff’s abuse of process claim because there were no
allegations that defendant sought to personally extract any benefit from the criminal action
against plaintiff. Instead, plaintiff alleged that defendant “had the ulterior motive of causing the
plaintiff to have his source of livelihood destroyed or damaged.” Plaintiff also alleged that
defendant had an ulterior purpose of damaging plaintiff’s personal and professional reputation,
as well as harassing and intimidating plaintiff.
A successful cause of action for abuse of process requires a plaintiff to “plead and prove
(1) an ulterior purpose, and (2) an act in the use of process that is improper in the regular
prosecution of the proceeding.” Bonner v Chicago Title Ins Co, 194 Mich App 462, 472; 487
NW2d 807 (1992). The plaintiff must plead and prove “some corroborating act” demonstrating
an ulterior purpose because a “bad motive alone will not establish an abuse of process.” Id.
Here, plaintiff did not plead any act that demonstrated that defendant had an ulterior purpose for
-4-
pursuing criminal charges against plaintiff. Instead, plaintiff simply pleaded conclusions that
defendant had ulterior purposes. According to the Bonner decision, this is plainly insufficient.
Therefore, as in Bonner, the trial court properly dismissed plaintiff’s lawsuit based on either
MCR 2.116(C)(8) or MCR 2.116(C)(10). See Jory, supra at 425.
Finally, the trial court dismissed plaintiff’s intentional infliction of emotional distress
count, stating that “a reasonable trier of fact could [not] find such extreme or outrageous conduct
that would cause this complaint to set forth an intentional infliction of emotional distress . . . .”
A successful claim of intentional infliction of emotional distress requires a plaintiff to plead and
prove: “(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4)
severe emotional distress.” Teadt v Lutheran Church Missouri Synod, 237 Mich App 567, 582;
603 NW2d 816 (1999). In Graham v Ford, 237 Mich App 670, 674; 604 NW2d 713 (1999), we
noted: “Liability for the intentional infliction of emotional distress has been found only where
the conduct complained of has been so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable
in a civilized community.”
Were there factual support for plaintiff’s allegation that defendant pursued criminal
charges against plaintiff though he knew that plaintiff was innocent, then perhaps the conduct
was extreme and outrageous. However, the only evidence beyond the mere conclusory
allegations in plaintiff’s pleadings suggested that defendant was simply not careful in
determining which “Mr. Freund” was responsible for filling the wetland area. While defendant’s
conduct, as alleged by plaintiff, could fairly be construed as “negligent,” we are not persuaded
that it rose to a level of extreme or outrageous. In the absence of a material question of fact
concerning defendant’s conduct, the trial court properly dismissed this count pursuant to MCR
2.116(C)(10). Consequently, we conclude that the trial court correctly dismissed each of
plaintiff’s ten counts as a matter of law.
Plaintiff also challenges the trial court’s denial of his motion for rehearing. We review a
trial court’s decision on a motion for rehearing or reconsideration for an abuse of discretion.
Churchman v Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000). Here, plaintiff
essentially argued that the trial court had been misled by defendant’s affidavit because of the
outstanding felony warrant against defendant. However, plaintiff’s motion did not reference any
specific factual allegation by defendant that was untrue, nor did he indicate which material
questions of fact the trial court improperly resolved. Further, plaintiff did not reference any legal
error. Instead, plaintiff simply asked the trial court to reconsider its earlier ruling, perhaps by
viewing defendant’s affidavit with increased skepticism. MCR 2.119(F)(3) provides in pertinent
part: “Generally, and without restricting the discretion of the court, a motion for rehearing or
reconsideration which merely presents the same issues ruled on by the court, either expressly or
by reasonable implication, will not be granted.” Accordingly, we do not believe that the trial
court abused its discretion by denying plaintiff’s motion for rehearing.
Defendant also contends that the trial court abused its discretion by denying his motion to
amend his original complaint. MCR 2.118(A)(2) provides that “a party may amend a pleading
only by leave of the court or by written consent of the adverse party.” Nevertheless, the Court
rule also provides that “[l]eave shall be freely given when justice so requires.” MCR
2.118(A)(2). A motion to amend pleadings should ordinarily be granted absent such factors as
“(1) undue delay, (2) bad faith or dilatory motive on the part of the movant, (3) repeated failure
-5-
to cure deficiencies by amendments previously allowed, (4) undue prejudice to the opposing
party by virtue of allowance of the amendment, or (5) futility of the amendment.” Lane v
KinderCare, 231 Mich App 689, 697; 588 NW2d 715 (1998). A futile amendment is one that
“merely restates the allegations already made or adds allegations that still fail to state a claim.”
Id. A trial court’s denial of a party’s motion to amend his or her complaint is reviewed for an
abuse of discretion. Backus v Kauffman (On Rehearing), 238 Mich App 402, 405; 605 NW2d
690 (1999).
Here, plaintiff’s proposed amended complaint added only two new factual allegations.
However, although these allegations may have been relevant to defendant’s credibility, they were
not relevant to plaintiff’s causes of action. Moreover, although plaintiff deleted five counts from
his original complaint, the proposed amended complaint alleged substantively identical versions
of the remaining five counts. Thus, having already dismissed these five retained counts, the trial
court correctly concluded that plaintiff’s motion was futile. Lane, supra at 697. Consequently,
the trial court did not abuse its discretion by denying plaintiff’s motion to amend his complaint.
Affirmed.
/s/ Henry William Saad
/s/ Donald S. Owens
/s/ Jessica R. Cooper
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
