PATRICK J MORRISSEY V NEXTEL RETAIL STORES LLC
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STATE OF MICHIGAN
COURT OF APPEALS
PATRICK J. MORRISSEY,
UNPUBLISHED
February 17, 2009
Plaintiff-Appellant,
v
Nos. 277893, 279153
Kent Circuit Court
LC No. 05-012048-NZ
NEXTEL RETAIL STORES, L.L.C.,
Defendant,
and
STEELCASE, INC., BRENT GOLEMBIESKI, and
STEVEN WOLFE
Defendants-Appellees.
Before: Sawyer, P.J., and Servitto and M. J. Kelly, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s orders, which granted summary disposition in
favor of defendants Steelcase, Inc., Golembieski, and Wolfe, and which denied plaintiff’s motion
to review the clerk’s taxation of costs.1 We affirm in part, reverse in part and remand.
Plaintiff asserts that the trial court erroneously granted summary disposition in favor of
defendants with respect to his invasion of privacy, conversion, and defamation claims. We
disagree.
A trial court’s ruling on a motion for summary disposition under MCR 2.116(C)(10) is
subject to de novo review, where this Court considers the pleadings, depositions, admissions, and
other documentary evidence in the light most favorable to the nonmovant. Morris & Doherty,
PC v Lockwood, 259 Mich App 38, 41-42; 672 NW2d 884 (2003). If the evidence fails to
demonstrate a genuine issue of material fact, the movant is entitled to judgment as a matter of
1
Plaintiff and Nextel Retail Services entered into a stipulation, which dismissed the claims with
prejudice and without costs
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law. Franchino v Franchino, 263 Mich App 172, 181; 687 NW2d 620 (2004). A genuine issue
of material fact exists when, after viewing the record in the light most favorable to the
nonmovant, there remains an issue upon which reasonable minds could differ. West v Gen
Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
With respect to plaintiff’s invasion of privacy claims, our state recognizes the four
common-law causes of action for invasion of privacy: (1) intrusion upon a plaintiff’s seclusion
or solitude, or into his or her private affairs; (2) public disclosure of embarrassing private facts;
(3) publicity that places a plaintiff in a false light in the public eye; and (4) appropriation of a
plaintiff’s name or likeness for a defendant’s advantage. Battaglieri v Mackinac Ctr for Pub
Policy, 261 Mich App 296, 300; 680 NW2d 915 (2004).
Plaintiff alleged in his first amended complaint that defendants intruded into his private
affairs, and disclosed private facts, casting him in a false light. Plaintiff has conflated two of the
invasion of privacy causes of action in his latter claim: publicity that places a plaintiff in a false
light in the public eye, and public disclosure of embarrassing private facts. On appeal, plaintiff
only provides cursory analysis and discussion of this issue, making a conclusory statement that
“[b]ecause there was clearly an invasion of plaintiff’s privacy, the trial court erred in granting
summary disposition in favor of the Steelcase defendants.” Plaintiff provides no support for this
conclusion. We have repeatedly ruled that an appellant may not merely announce his position
and leave it to this Court to discover and rationalize the basis for his claims; nor may he give
issues cursory treatment with little or no citation of supporting authority. Peterson Novelties, Inc
v City of Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003). Plaintiff’s failure to properly
address the merits of his assertion of error constitutes abandonment of the issue on appeal. Id.
Nevertheless, we conclude that the trial court properly granted defendants summary
disposition with respect to plaintiff’s invasion of privacy claims. To establish a prima facie case
of intrusion upon seclusion, solitude, or into private affairs, a plaintiff must establish: (1) the
existence of a private and secret subject matter; (2) a right to keep that subject matter private;
and, (3) that a defendant obtained that information through some manner objectionable to a
reasonable person. Tobin v Mich Civil Service Comm, 416 Mich 661, 672; 331 NW2d 184
(1982); Lewis v LeGrow, 258 Mich App 175, 193; 670 NW2d 675 (2003). The intrusion upon
seclusion cause of action “focuses on the manner in which the information was obtained, not on
the information’s publication.” Id. at 193. Invasion of privacy claims require a fact-specific
analysis. Earp v Detroit, 16 Mich App 270, 277; 167 NW2d 841 (1969).
In the instant case, it was undisputed that plaintiff placed numerous telephone calls
regarding his personal business during work hours. When plaintiff’s supervisor, Brent
Golembieski, confronted him about such calls following a business trip, plaintiff claimed that he
was using his personal cellular telephone. Later, Golembieski learned that plaintiff had two
cellular telephones, both of which were paid for by Steelcase. Golembieski conducted an
investigation, using information to which he readily had access, because the statements for his
employees’ cellular accounts were sent to him. The fact that plaintiff never authorized the
change of his personal cellular account to the Steelcase corporate account does not “taint in any
way the information received.” Id. at 281. Further, plaintiff does not have a reasonable
expectation of privacy in the phone numbers dialed from his telephone, because he disclosed
such information to the third-party telephone company. People v Gadomski, 274 Mich App 174,
180; 731 NW2d 466 (2007). Defendants’ duty to refrain from intruding into plaintiff’s private
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affairs is not absolute, because that duty is limited by those rights that arise from the parties’
business relationship. Lewis, supra at 169. Ultimately, plaintiff’s cause of action for intrusion
upon private affairs depends on “the manner in which the information was obtained, not on the
information’s publication.” Id. at 193. The challenged information was obtained during the
course of the employer-employee relationship, where Steelcase received billing statements for
plaintiff’s cellular telephone, and Steelcase paid for those charges. See generally Earp, supra at
273-281. On this record, we conclude that liability should not attach because defendants’
conduct would not “offend persons of ordinary sensibilities.” Id. at 276-277 n 3. Thus, no issue
as to any material fact exists, and defendants were entitled to summary disposition pursuant to
MCR 2.116(C)(10) with respect to plaintiff’s claim of intrusion into private affairs. Id. at 282.
Next, plaintiff’s first amended complaint combines the torts of false light and public
disclosure of embarrassing facts into one cause of action. “False-light invasion of privacy
requires a communication broadcast to the public in general or publicized to a large number of
people that places the injured party in a light that would be highly offensive to a reasonable
person.” Frohriep v Flanagan (On Remand), 278 Mich App 665, 684; 754 NW2d 912 (2008).
“A cause of action for public disclosure of private facts requires the disclosure of information
that would be highly offensive to a reasonable person and of no legitimate concern to the public,
and the information disclosed must be of a private nature that excludes matters already of public
record or otherwise open to the public eye.” Duran v Detroit News, Inc, 200 Mich App 622,
631; 504 NW2d 715 (1993).
We conclude that plaintiff has not satisfied the “publicity” prong of either cause of
action. Plaintiff merely alleged that third parties were told that he was fired. Plaintiff makes no
allegations that any defendants told the third parties. The false-light tort does not lie unless a
plaintiff demonstrates that the publication was made to the general public or a large number of
people, Derderian v Genesys Health Care Sys, 263 Mich App 364, 385; 689 NW2d 145 (2004),
and a cause of action for private disclosure of embarrassing facts does not lie if the
communication concerning the embarrassing facts is to a single person or a small group of
persons, Lansing Ass’n of School Administrators v Lansing School Dist Bd of Ed, 216 Mich App
79, 89; 549 NW2d 15 (1996), rev’d in part on other grounds sub nom Bradley v Bd of Ed of the
Saranac Community Schools, 455 Mich 285; 565 NW2d 650 (1997). Additionally, we note that
plaintiff admitted that he recorded approximately two dozen conversations with his former
coworkers following his termination, and we agree with defendants’ assertion that “[p]laintiff
can hardly claim a privacy interest exists when it is plaintiff himself who is disseminating the
information he claims violates his privacy.” Ultimately, plaintiff does not specify the nature of
defendants’ disclosure or identify the people to whom defendants disclosed the private
information. Plaintiff only indicated that the information was disclosed to individuals in his
professional organizations, his neighbors, or his church. Plaintiff alleges no facts indicating that
any alleged disclosures were made to more than a few people. Without evidence of how many
people constituted his professional organizations, his neighbors, or his church, there is no
evidence to support the publicity element of plaintiff’s false light claim. Derderian, supra at
387. Further, there is no evidence that the communication was “to so many persons that the
matter is substantially certain to become public knowledge.” Lansing Ass’n of School
Administrators, supra at 89 (emphasis added). Accordingly, plaintiff failed to establish the
publicity element of either cause of action; thus, plaintiff failed to present a genuine issue of
material fact with respect to either claim, and defendants were entitled to summary disposition
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pursuant to MCR 2.116(C)(10).
Administrators, supra at 89.
Derderian, supra at 387; Lansing Ass’n of School
Next, we reject plaintiff’s claim that the trial court erroneously granted defendants
summary disposition with respect to his conversion claim. Plaintiff devotes three paragraphs to
this issue, where he ultimately concludes that “[i]t is foreaseeable that Steelcase’s actions (or
inactions) in transferring plaintiff’s cell phone service and billing records could subject the
employee to an invasion of his privacy and further embarrassment and humiliation by allowing
others to review his personal information.” Plaintiff cites no authority to support this conclusion.
This issue is abandoned. Peterson Novelties, Inc, supra at 14.
Nevertheless, plaintiff’s conversion claim lacks merit. Plaintiff claimed that the April 6,
2004, transfer of his personal cellular account to the Steelcase corporate account, and the May
11, 2005, termination of the cellular service constituted conversion. Even assuming that a
cellular telephone account can be converted, plaintiff only first made a demand for the return of
the cellular service from the corporate account to a personal account in May 2005, and the
cellular account was ultimately reinstated in plaintiff’s name on June 7, 2005. A plaintiff cannot
maintain an action for conversion until he or she first makes a demand for the return of the
converted property. Bush v Hayes, 286 Mich 546, 552; 282 NW 239 (1938). Moreover,
defendants properly made a good-faith refusal of plaintiff’s demand in order to investigate his
title to the cellular account. Parnell v Pungs, 190 Mich 638, 643-644; 157 NW 357 (1916).
Because defendants made a good-faith refusal to plaintiff’s initial demand, we conclude that they
were entitled to summary disposition pursuant to MCR 2.116(C)(10), where there was no
genuine issue as to any material fact regarding plaintiff’s conversion claim.
Next, we conclude that defendants were entitled to summary disposition pursuant to
MCR 2.116(C)(10), because there was no genuine issue of material fact regarding plaintiff’s
defamation claim, where he failed to plead the elements of defamation with specificity. A
defamation action consists of “(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 special harm
(defamation per se) or the existence of special harm caused by publication (defamation per
quod).” Frohriep, supra at 680. “These elements must be specifically pleaded, including the
allegations with respect to the defamatory words, the connection between the plaintiff and the
defamatory words, and the publication of the alleged defamatory words.” Gonyea v Motor Parts
Fed Credit Union, 192 Mich App 74, 77; 480 NW2d 297 (1991).
We conclude that plaintiff’s pleadings do not rise to the requisite level of specificity for a
defamation claim, where he failed to plead anything with respect to the publication of the
defamatory word. Id. Plaintiff made only a general allegation that “[d]efendants published these
remarks to third parties with knowledge of the falsity of these statements or in reckless disregard
of their truth or falsity.” See Ledl v Quik Pik Food Stores, Inc, 133 Mich App 583, 589-590; 349
NW2d 529 (1984) (summary disposition proper where the failure of a plaintiff to set forth with
specificity the necessary elements of a defamation cause of action); Hernden v Consumers
Power Co, 72 Mich App 349, 356; 249 NW2d 419 (1976) (summary disposition proper where a
plaintiff’s failure to allege “where, when, or to whom” the alleged defamatory statement was
published, or that there even was a publication to anyone other than the plaintiff himself).
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In his first amended complaint, plaintiff alleged the following:
The accusation that plaintiff transferred his personal cell phone account to
a Steelcase corporate account or otherwise improperly converted phone service
from Steelcase is false.
The accusation that plaintiff conducted personal business during working
hours beyond what is permitted in Steelcase’s 2005 Employee Handbook is false.
Defendants published these remarks to third parties with knowledge of the
falsity of these statements or in reckless disregard of their truth or falsity.
In Hernden, supra at 356, this Court concluded that the plaintiff’s allegations failed to
state a cause of action for libel, where the plaintiff alleged that he “was defamed when defendant,
through its agents, stated that plaintiff’s employment was terminated because of his lack of
productivity.” We reach the same conclusion. Defendants were entitled to summary disposition,
where plaintiff failed to make sufficient allegations regarding his defamation claim. Id. at 356357.
Finally, plaintiff argues that the trial court erroneously awarded deposition costs to
defendants, where they failed to file the complete transcripts in the clerk’s office, as required
under the plain and unambiguous language of MCL 600.2549. This Court reviews an award of
costs for an abuse of discretion. Badiee v Brighton Area Schools, 265 Mich App 343, 377; 695
NW2d 521 (2005). We also review de novo questions of statutory interpretation. Morrison v
City of East Lansing, 255 Mich App 505, 522; 660 NW2d 395 (2003).
MCL 600.2549 provides:
Reasonable and actual fees paid for depositions of witnesses filed in any
clerk’s office and for the certified copies of documents or papers recorded or filed
in any public office shall be allowed in the taxation of costs only if, at the trial or
when damages were assessed, the depositions were read in evidence, except for
impeachment purposes, or the documents or papers were necessarily used.
We find that Portelli v I R Constr Products Co, Inc, 218 Mich App 591; 554 NW2d 591
(1996), is dispositive. In that case, after the trial court granted the defendant’s motion for
summary disposition, that defendant filed a motion to tax costs against the plaintiff, “seeking
costs for four depositions necessarily used to procure summary disposition.” Id. at 595-596. On
appeal, the plaintiff argued “that the costs for the deposition transcripts were not taxable because
the depositions were not ‘filed in any clerk’s office’ as required by MCL 600.2549.” Id. at 606.
This Court reluctantly agreed, finding that it was undisputed that the defendant did not file the
four deposition transcripts separately in any clerk’s office. Id. This Court noted:
When the issue was raised before the lower court, [the defendant] argued
that excerpts of the depositions were incorporated with its motion for summary
disposition that was filed with the court clerk. The lower court could not recall
whether any excerpts were included with the motion, but upon plaintiff’s failure
to show that they had not been attached, the court granted the costs. [Id.]
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This Court concluded that the trial court did not have statutory authority to tax costs for
the depositions. Id. at 607. This Court opined that “logic would indicate that depositions used to
resolve a case should be taxable”; however, it could not rewrite the statute, which plainly stated
“that costs shall be allowed only for depositions ‘filed in any clerk’s office.’ ” Id. This Court
held that the plain, clear, and unambiguous language of MCL 600.2549 demonstrated that “the
Legislature intended the taxation of costs only for depositions filed in a clerk’s office.” Id.
In Portelli, supra at 606, the trial court accepted that excerpts of the depositions had been
attached to the defendant’s motion. This Court held that that was insufficient—costs for
depositions could be taxed only if the depositions themselves have been filed in a clerk’s office.
Id. at 607. It is clear under Portelli that filing excerpts as attachments to a motion filed with the
clerk’s office is insufficient to authorize the taxation of costs under MCL 600.2549. See also
Elia v Hazen, 242 Mich App 374; 619 NW2d 1 (2000).
Accordingly, we agree with plaintiff that the trial court erred in allowing the taxation of
costs for depositions not separately filed with the clerk’s office. On remand, the trial court shall
modify the award of costs accordingly.
Affirmed in part, reversed in part and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction. No costs, no party having prevailed in full.
/s/ David H. Sawyer
/s/ Deborah A. Servitto
/s/ Michael J. Kelly
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