MICHAEL C CHUPA V CAROLYN KURKOWSKI MOCERI
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STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL C. CHUPA, JENNIFER J. CHUPA,
CHUPA & ASSOCIATES, P.C., D. TODD
WILLIAMS, AND D. TODD WILLIAMS, P.C.,
UNPUBLISHED
March 4, 2010
Plaintiffs-Appellees,
v
CAROLYN KURKOWSKI MOCERI, JAMES R.
FOUTS, MICHAEL J. WIECEK, MARY M.
KAMP, and CITY OF WARREN,
No. 288337
Macomb Circuit Court
LC No. 07-002977-CZ
Defendants-Appellants.
Before: Hoekstra, P.J., and Stephens and M. J. Kelly, JJ.
PER CURIAM.
Defendants appeal by leave granted the trial court’s order denying their motion for
summary disposition under MCR 2.116(C)(10) on plaintiffs’ claims for defamation, breach of
contract, unjust enrichment, and account stated. We reverse the trial court’s order on the claims
for defamation and breach of contract, but affirm the order on the claims for unjust enrichment
and account stated and remand for further proceedings.
Plaintiffs Michael C. Chupa (Michael), Jennifer J. Chupa (Jennifer), and D. Todd
Williams sued defendants for defamation.1 Michael and Jennifer also sued defendants, four
members of the Warren City Council and the City of Warren (City), for breach of contract,
unjust enrichment, and account stated. The defamation claim arose from statements that the
individual defendants made at meetings of the Warren City Council on May 24, 2005, and
September 13, 2005, and from statements by the individual defendants that appeared in various
newspaper articles. The breach of contract, unjust enrichment, and account stated claims arose
from the individual defendants’ refusal to authorize the City’s controller’s officer to issue
payment to Michael and Jennifer on orders of payment issued by the 37th District Court (District
Court) for the representation that Michael and Jennifer provided to indigent defendants.
1
The count in the complaint was titled “libel and slander.”
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The trial court denied defendants’ motion for summary disposition under MCR
2.116(C)(10). It found that there was a question of fact whether the individual defendants had
defamed plaintiffs and whether the orders for payment issued by the District Court had been
fully paid by the City.2
I. Standard of Review
We review de novo a trial court’s decision on a motion for summary disposition.
Johnson v Wausau Ins Co, 283 Mich App 636, 641; 769 NW2d 755 (2009). Summary
disposition is appropriate under MCR 2.116(C)(10) if “there is no genuine issue as to any
material fact, and the moving party is entitled to judgment . . . as a matter of law.” We must
view the submitted documentary evidence in the light most favorable to the nonmoving party.
Johnson, 283 Mich App at 641.
II. Defamation
On appeal, defendants claim that they are entitled to summary disposition on plaintiffs’
defamation claim for two reasons that were not argued before the trial court. Defendants argue
that the alleged defamatory statements by the individual defendants were absolutely privileged,
and, in the alternative, argue that governmental immunity protects the individual defendants, as
legislators, from tort liability.
Because defendants did not raise the issues of absolute privilege and governmental
immunity below, the issues are not preserved for appellate review. Polkton Charter Twp v
Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005). We are not obligated to address issues
that are raised for the first time on appeal. Michigan Ed Ass’n v Secretary of State, 280 Mich
App 477, 488; 761 NW2d 234 (2008). However, we may disregard preservation requirements.
We may consider an unpreserved issue if the issue involves a question of law and the facts
necessary for its resolution have been presented. Laurel Woods Apartments v Roumayah, 274
Mich App 631, 640; 734 NW2d 217 (2007). The issue whether a privilege attaches to a
communication is a question of law, Couch v Schultz, 193 Mich App 292, 294; 483 NW2d 684
(1992), as is the application of governmental immunity, County Road Ass’n of Michigan v
Governor, ___ Mich App ___; ___ NW2d ___ (2010). Our review of the record establishes that
the necessary facts for resolution of the issues have been presented.3 Accordingly, we exercise
our discretion and review the issues of absolute privilege and governmental immunity.
2
Plaintiffs initially sued defendants in federal court. After that lawsuit was filed, the City paid
lump sums of $17,252 and $21,762.50 to Michael and Jennifer, respectively. The federal district
court dismissed the case after it granted summary disposition to defendants on plaintiffs’ claims
for violations of due process and equal protection.
3
We note that plaintiffs argue that, had defendants raised the issue of governmental immunity
below, they could have presented evidence to create a genuine issue of material fact regarding
whether the individual defendants are entitled to immunity. Plaintiffs do not, however, explain
what evidence they could and would have presented had the issue of governmental immunity
(continued…)
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A. Absolute Privilege
“A communication is defamatory if, under all the circumstances, it tends to so harm the
reputation of an individual that it lowers the individual’s reputation in the community or deters
others from associating or dealing with the individual.” Kefgen v Davidson, 241 Mich App 611,
617; 617 NW2d 351 (2000). There are four elements to a defamation action:
(1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged
communication to a third party, (3) fault amounting at least to 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. [Oesterle v Wallace, 272 Mich App 260, 263-264; 725 NW2d 470
(2006) (quotation omitted).]
A communication that is covered by absolute privilege is not actionable. Oesterle, 272
Mich App at 264. “The doctrine of absolute privilege is narrow. The privilege extends to: 1)
proceedings of legislative bodies; 2) judicial proceedings; and 3) communications by military
and naval officers.” Froling v Carpenter, 203 Mich App 368, 371; 512 NW2d 6 (1994) (internal
citations omitted); see also Timmis v Bennett, 352 Mich 355, 363-364; 89 NW2d 748 (1958).
“The absolute privilege for legislative bodies extends to subordinate bodies, such as a city
council.” Froling, 203 Mich App at 371. However, a communication made by a legislative
official during a legislative hearing is only privileged if the communication concerned a public
matter and was made while the official was carrying out an official duty. Id. at 371-372. A
statement is not absolutely privileged merely because it was made during a legislative
proceeding. Id.
The fact that a public official is a member of a legislative body and is in
attendance at a duly convened proceeding of such body does not afford him an
invitation to undertake an unrestricted slanderous campaign against whomever he
pleases, concerning whatever he pleases. In addition to being spoken during a
legislative or quasi-legislative session, the statements at issue must be made by
the public official while in the process of carrying out an official duty. [Gidday v
Wakefield, 90 Mich App 752, 756; 282 NW2d 466 (1979).]
Defendants claim that the alleged defamatory statements by the individual defendants
made at the May 24, 2005, and September 13, 2005 city council meetings, as well as the alleged
defamatory statements that appeared in various newspaper articles, are absolutely privileged.
We begin by considering the communications at the two city council meetings.
At the May 24, 2005 meeting, the matter before the City Council was a rezoning request
by Ferlito Construction, which was represented at the meeting by Williams. Plaintiffs cannot
dispute that the rezoning request was an issue properly before the City Council. One function of
the City Council was to decide rezoning requests. The alleged defamatory communications,
which were made by defendants Fouts and Wiecek, were made after Williams confirmed that he
(…continued)
been raised below.
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had previously represented White Castle before the City Council and that both White Castle and
Ferlito Construction had been represented by Michael before the planning commission. In
addition, several of the alleged defamatory communications were made after a Warren resident
asked Councilman Michael W. Chupa, the father of Michael and Jennifer, not to vote on the
rezoning request, another Warren resident asked the City Council to “debate” the apparent “big
switch” of Ferlito Construction’s representation, and Councilman Chupa asked his fellow council
members to vote on whether to excuse him from voting on the rezoning request. The alleged
defamatory communications by Fouts and Wiecek were part of a larger discussion regarding the
Ferlito Construction rezoning request. The larger discussion included debates on whether the
Chupas, with the help of Williams, were attempting to “hoodwink” the City Council into
approving the rezoning request and whether Councilman Chupa should be excused from voting
on the rezoning request. Accordingly, the statements of Fouts and Wiecek concerned public
matters and were made while Fouts and Wiecek were in the process of carrying out an official
duty. The alleged defamatory communications at the May 24, 2005 city council meeting were
absolutely privileged.
At the September 13, 2005 meeting, the matter before the City Council that sparked
intense discussion were orders for payment from the District Court for the representation
provided to indigent defendants by Michael and Jennifer. Again, it cannot be disputed that
authorization of payment to Michael and Jennifer was an issue properly before the City Council.
Although orders for payment had been issued by the District Court, the City Council had to
authorize payment before any payment could be made.
The alleged defamatory
communications, which were made by all four of the individual defendants, were made in the
City Council’s discussion regarding whether to authorize payment to Michael and Jennifer. The
discussion involved concerns by defendants that Michael and Jennifer received more court
appointments than other attorneys because of Councilman Chupa’s presence on the City Council
and whether Councilman Chupa, by voting on the District Court budget from which his children
received substantial income, violated the Council’s ethics and anti-nepotism ordinances. The
alleged defamatory communications were not part of “an unrestricted slanderous campaign”
against Michael and Jennifer. Rather, the statements were made while the individual defendants,
and other city council members, were discussing an issue that was properly before the City
Council. Accordingly, the alleged defamatory communications at the September 13, 2005 city
council meeting were absolutely privileged.
Because the alleged defamatory communications made by the individual defendants at
the two city council meetings were absolutely privileged, the communications are not actionable.
Oesterle, 272 Mich App at 264. The individual defendants, therefore, are entitled to summary
disposition on plaintiffs’ defamation claim in regard to the alleged defamatory communications
that were made at city council meetings.
However, we cannot conclude that the alleged defamatory communications that appeared
in various newspaper articles were also absolutely privileged. Although defendants claim that
“[t]he record does not show that any of the complained-of statements were made outside of
legislative proceedings,” the record does not show that the communications were, in fact, made
at city council meetings. The record is simply silent regarding when the communications
contained in the newspaper articles were made. Because the record does not establish that the
communications of the individual defendants that appeared in the newspaper articles were made
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at city council meetings, defendants have not shown that the communications were absolutely
privileged.
B. Governmental Immunity
Pursuant to MCL 691.1407(5), judges, legislators, and highest executive officials of all
levels of government are absolutely immune from tort liability when acting within their judicial,
legislative, or executive authority. See American Transmissions, Inc v Attorney General, 454
Mich 135, 139; 560 NW2d 50 (1997). MCL 691.1407(5) provides:
A judge, a legislator, and the elective or highest appointive executive
official of all levels of government are immune from tort liability for injuries to
persons or damages to property if he or she is acting within the scope of his or her
judicial, legislative, or executive authority.4
In American Transmissions, Inc, 454 Mich at 143, our Supreme Court stated that there
was no “malevolent-heart” exception to MCL 691.1407(5). Likewise, the Court stated that an
official’s “motive” in making a statement is not a consideration in determining whether an
official was acting within the scope of his authority. Id.; see also Brown v Mayor of Detroit, 271
Mich App 692, 723; 723 NW2d 464 (2006), vacated in part on other grounds 478 Mich 589
(2007) (“[R]egardless of whether Mayor Kilpatrick intended to lie or mislead the public about
the two plaintiffs, he was acting within the scope of his authority as mayor to respond to
questions about personnel and city issues. . . . [B]ecause American Transmissions holds that
there is no motivation or intent exception to the immunity provided by MCL 691.1407(5), we
cannot conclude that Mayor Kilpatrick was acting outside the scope of his authority . . . .”).
Thus, if the individual defendants were acting within their legislative authority when they made
the statements that appeared in the newspaper articles, the individual defendants are entitled to
summary disposition based on governmental immunity, irrespective of their intentions in making
the statements.
Although the circumstances of when the individual defendants made the statements that
appeared in the newspaper articles are unknown, it is clear from the statements themselves that
the individual defendants were speaking of matters that were before the City Council,
specifically the authorization of payment to Michael and Jennifer for representation of indigent
defendants in the District Court and whether Councilman Chupa could vote on the District Court
budget without violating certain ordinances. For example, one article quoted defendant Kamp as
saying, “They [Michael and Jennifer] should wait until dad no longer is in position to approve
the budget, or let dad step down so that they can practice law for longer than he’ll be on the
council.” An article quoted Wiecek as saying, “We do not intend to pay them until their father
resigns.” An article quoted Fouts as saying, “His children make financial gain. It’s clear
nepotism when he’s approving the district court budget.” Because the individual defendants
were clearly speaking of matters before the City Council when they made the statements that
4
Plaintiffs do not argue that the individual defendants are not “legislator[s]” subject to absolute
tort immunity.
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appeared in the newspaper articles, the individual defendants were acting within the scope of
their legislative authority when the statements were made. Accordingly, the individual
defendants are entitled to summary disposition on plaintiffs’ defamation claim in regard to the
alleged defamatory communications that appeared in various newspaper articles. We reverse the
trial court’s order denying defendants’ motion for summary disposition on plaintiffs’ defamation
claim.
III. Breach of Contract
Defendants claim that the trial court erred in not granting summary disposition to them on
the breach of contract claims because Michael and Jennifer did not have a contract with the City.
We agree.
“The essential elements of a valid contract are the following: (1) parties competent to
contract, (2) a proper subject matter, (3) a legal consideration, (4) mutuality of agreement, and
(5) mutuality of obligation.” Hess v Cannon Twp, 265 Mich App 582, 592; 696 NW2d 742
(2005) (quotation omitted). Consideration is a bargained-for exchange; “a benefit on one side, or
a detriment suffered, or service done on the other.” Meyer & Anna Prentis Family Foundation,
Inc v Barbara Ann Karmanos Cancer Institute, 266 Mich App 39, 58; 698 NW2d 900 (2005)
(quotations omitted).
The bargained-for exchange was between Michael and Jennifer and the District Court.
Michael and Jennifer represented indigent defendants in the District Court, and the District Court
paid Michael and Jennifer for the representation pursuant to a fee schedule. The complication in
the present case was that the District Court was unable to directly pay Michael and Jennifer. It
had to submit orders of payment to the controller’s office, and the controller’s office could only
issue payment after the City Council authorized payment. Thus, without the City Council’s
authorization of the payment, any contract between Michael and Jennifer and the City could not
be completed. However, the fact remains that there was no bargained-for exchange between
Michael and Jennifer and the City. The City never agreed to pay Michael and Jennifer for any
legal service. Because there was no contract between Michael and Jennifer and the City, we
reverse the trial court’s order denying defendants’ motion for summary disposition on the breach
of contract claims.
IV. Unjust Enrichment and Account Stated
Defendants assert that the trial court erred in not granting them summary disposition on
the claims for unjust enrichment and account stated because the evidence established that the
City paid Michael and Jennifer for the outstanding orders of payment. We disagree.
The complaint alleged that the City owed $17,970 to Michael and $25,625 to Jennifer.
According to the complaint, after the City paid $17,525 to Michael and $21,762.50 to Jennifer in
August 2006, the City still owed $445 to Michael and $3,862.50 to Jennifer. In the claims for
unjust enrichment and account stated, Michael and Jennifer requested that judgment be entered
against the City for these amounts. In response to defendants’ motion for summary disposition,
Michael and Jennifer presented an affidavit signed by Lynn Geist, an attorney with the law firm
representing them. Geist averred that based on her review of the District Court’s orders of
payments and a list of payments received by Michael and Jennifer, the City still owed $2,900 to
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Michael and $4,050 to Jennifer. Based on Geist’s affidavit, there is a factual issue whether
Michael and Jennifer have been paid on all the outstanding orders of payment. Accordingly, we
affirm the trial court’s order denying defendants’ motion for summary disposition on the unjust
enrichment and account stated claims.
Affirmed in part, reversed in part, and remanded for further proceedings not inconsistent
with this opinion. We do not retain jurisdiction.
/s/ Joel P. Hoekstra
/s/ Cynthia Diane Stephens
/s/ Michael J. Kelly
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