MARCUS YONO V ERIC CARLSONAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
MARCUS YONO, LIVINGSTON BUILDING
COMPANY, L.L.C., and SUTTONS POINTE
April 28, 2009
Livingston Circuit Court
LC No. 07-022810-CA
ERIC CARLSON and LEELANAU
Advance Sheets Version
Before: Owens, P.J., and Sawyer and Markey, JJ.
Plaintiffs appeal by delayed leave granted the trial court’s order granting defendants’
motion for change of venue. We affirm.
The facts submitted established that plaintiff Marcus Yono is a resident of Livingston
County. He is also the sole member of plaintiff Livingston Building Company, L.L.C., a
construction company based in Livingston County, and is a member and manager of plaintiff
Suttons Pointe Development, L.L.C. Livingston Building Company is currently building a
project called Bay View in Suttons Bay in Leelanau County. Defendant Eric Carlson is a
reporter for the Leelanau Enterprise, a weekly newspaper located in Leelanau County and owned
by defendant Leelanau Enterprise, Inc. The newspaper is printed solely in Leelanau County,
does not advertise in Livingston County, and mails by subscription to no more than 19 addresses
in Livingston County.
The complaint in this action arises out of several alleged defamatory statements
concerning plaintiffs’ Bay View project that were published in defendants’ newspaper. Plaintiffs
allege that such publication damaged their reputation in Livingston County by impugning their
business integrity and raising concerns about their financial solvency. Plaintiffs further allege
that as a result of the damage to their reputation, they have suffered economic loss in that some
people have cancelled their purchase agreements for condominium units in the Bay View project.
On defendants’ motion, the trial court transferred venue from Livingston County to Leelanau
County after determining that the original injury occurred in Leelanau County.
Plaintiffs claim that because the original injury occurred in Livingston County, venue is
proper there and the trial court erred by transferring venue to Leelanau County. We disagree. A
trial court’s ruling in response to a motion to change improper venue is reviewed for clear error.
Massey v Mandell, 462 Mich 375, 379; 614 NW2d 70 (2000). “Clear error exists when the
reviewing court is left with a definite and firm conviction that a mistake has been made. Id.
However, this case involves the interpretation of a statute, which is a question of law calling for
review de novo. Haworth, Inc v Wickes Mfg Co, 210 Mich App 222, 227; 532 NW2d 903
(1995). The primary objective of statutory interpretation is to ascertain and give effect to the
intent of the Legislature from the plain language of the statute. Lash v Traverse City, 479 Mich
180, 186-187; 735 NW2d 628 (2007).
MCL 600.1629 provides, in relevant part:
(1) Subject to subsection (2), in an action based on tort or another legal
theory seeking damages for personal injury, property damage, or wrongful death,
all of the following apply:
(a) The county in which the original injury occurred and in which either of
the following applies is a county in which to file and try the action:
(i) The defendant resides, has a place of business, or conducts business in
(ii) The corporate registered office of a defendant is located in that county.
The Michigan Supreme Court recently held that “the location of the original injury is
where the first actual injury occurs that results from an act or omission of another, not where a
plaintiff contends that it first relied on the act or omission that caused the injury.” Dimmitt &
Owens Financial, Inc v Deloitte & Touche (ISC), LLC, 481 Mich 618, 620; 752 NW2d 37 (2008)
(emphasis in original). The Court explained, “Reliance creates only a potential injury, which is
insufficient to state a negligence cause of action . . . .” Id. (emphasis in original). In a medicalmalpractice case, where death allegedly resulted from a misdiagnosis leading to a ruptured
aneurysm, this Court held that “venue rests with the county where the injury resulting in death
occurred, and not the place where the death itself took place.” Karpinski v St John HospMacomb Ctr Corp, 238 Mich App 539, 544; 606 NW2d 45 (2000). Further, in another medicalmalpractice case, which concerned an injury attributed to the misreading of an X-ray, this Court
held that “the plaintiff’s injury is the corporeal harm that results from the defendant’s alleged
failure to meet the recognized standard of care.” Taha v Basha Diagnostics, PC, 275 Mich App
76, 79; 737 NW2d 844 (2007) (emphasis in original). The plaintiffs attempt to extend the
reasoning of these cases to one alleging defamation by claiming that the publication of
statements creates the mere potential for injury, and thus the injury does not occur until the
defamed party actually suffers some concrete, adverse consequence of that publication.
However, this is a case of defamation per se, where damages are presumed; therefore it is
only logical to equate presumed damages with the initial publication in Leelanau County.
Michigan law distinguishes between defamation per se whereby a defamatory statement is
actionable “irrespective of special harm” and defamation per quod, which involves “the
existence of special harm caused by publication . . . .” Frohriep v Flanagan (On Remand), 278
Mich App 665, 680; 754 NW2d 912 (2008). Words are defamatory per se if they, “by
themselves, and as such, without reference to extrinsic proof, injure the reputation of the person
to whom they are applied.” Black’s Law Dictionary (6th ed), p 417. “Whether nominal or
substantial, where there is defamation per se, the presumption of general damages is well
settled.” Burden v Elias Bros Big Boy Restaurants, 240 Mich App 723, 728; 613 NW2d 378
Because this Court has never addressed the issue of original injury in a defamation per se
case, it is appropriate to examine other jurisdictions for persuasive authority.1 According to 50
Am Jur 2d, Libel and slander, § 402, p 796, “[u]nder a statute which prescribes venue in the
county where the cause of action accrued, in a case of defamation, the cause of action accrues in
the county where the defamation was first published, which in the case of a newspaper is where
the newspaper is prepared, edited, and disseminated.” Further, “[s]tatutory provisions requiring
venue . . . to be laid in the county in which . . . the injury occurred . . . have been construed as
allowing venue of an action for libel in a periodical or newspaper to be laid only in the county in
which it was first printed and issued, and not in every county in which it was circulated.” Id., §
403, pp 796-797.
Defendant Leelanau Enterprise, Inc., has its corporate registered office in Leelanau
County. It also prepares and prints its newspaper solely in Leelanau County. In fact, even
though plaintiffs claim that the people who cancelled their purchase agreements for the Bay
View project were not located in Leelanau County, the project is located in Leelanau County and
that is where the economic loss was first experienced. Thus, the original injury occurred in
Finally, after determining that the original injury occurred in Leelanau County, we must
apply in descending order the subparagraphs of MCL 600.1629 that apply to this particular case.
See Massey, supra. MCL 600.1629(1)(a) designates venue in the county where the original
injury occurred and where, “(i) [t]he defendant resides, has a place of business, or conducts
business in that county,” or where “(ii) [t]he corporate registered office of a defendant is located
in that county.” Defendants are solely located and have their registered office in Leelanau
County. But, in Massey, the Supreme Court determined that the definite article “the” in MCL
600.1629(1)(a)(i) demonstrates the Legislature’s intent to define the phrase “[t]he defendant” as
meaning one single defendant. See Massey, supra at 382-385. Therefore, because there are
multiple defendants in this case, MCL 600.1629(1)(a)(i) does not apply.
Moreover, under the same reasoning above, defendants fall within MCL
600.1629(1)(a)(ii) because there are multiple defendants. Accordingly, venue is proper in
Leelanau County under MCL 600.1629(1)(a)(ii) because the original injury occurred there when
However, as the Michigan Legal Milestone case of Theodore Roosevelt v George Newett
reveals, even the former President of the United States pursued and prosecuted his libel claim
against a Michigan defendant in Marquette County in 1913, where the defamatory words were
printed. State Bar of Michigan, Michigan Legal Milestones <http://www.michbar.org/programs/
milestones.cfm> (accessed March 10, 2009).
the allegedly defamatory words were printed, and it is also the location of the corporate
registered office of defendant Leelanau Enterprise, Inc.
/s/ Donald S. Owens
/s/ David H. Sawyer
/s/ Jane E. Markey