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holding that the plaintiffs abandoned an issue by failing to argue in their appellate brief the merits of their allegations of error
Summary of this case from Saban v. Henry Ford Health Sys.Opinion
Docket No. 132544.
Submitted December 15, 1992, at Detroit.
Decided July 20, 1993; approved for publication January 26, 1994, at 9:00 A.M.
Eric G. Flinn, for the plaintiff.
Cummings, McClorey, Davis Acho, P.C. (by Marcia L. Howe and T. Joseph Seward), for the defendant.
Before: MURPHY, P.J., and MARILYN KELLY and CORRIGAN, JJ.
Plaintiffs appeal from a Macomb Circuit Court order granting summary disposition to defendant Joan Carpenter under MCR 2.116(C) (7). Plaintiffs argue that the trial court erred in granting summary disposition on the basis of absolute privilege. We affirm.
I
Defendant is a Sterling Heights City Council member. Plaintiff William Froling, Sr. is a developer who sought to rezone a parcel of land located within the city. The city council voted to approve the rezoning petition on June 7, 1988. Defendant voted against it. However, a second vote was required pursuant to the Sterling Heights Charter and was held on July 19, 1988. The rezoning petition was denied on that date when it failed to receive approval by a two-thirds majority.
Plaintiffs' complaint alleges that on July 20, 1988, at the request of Mayor Pro-Tem Stephen Rice, Mayor Jean DiReeze Gush scheduled a special meeting of the city council for July 25, 1988. The purpose of the meeting was to consider appointments to various Sterling Heights' committees and commissions. During that televised meeting, defendant indicated:
I had the pleasure of being at the Goodfellows Golf Outing that Thursday evening. I also, had the experience of having Mr. Froling ask me to have a drink, which I sat down and did and he proceeded to tell me that he asked Jean Gush to call this meeting because they had to get rid of Rudy Pale and Jack Sisinger on the Planning Commission. He asked us to call the meeting to get rid of those people, had to get the jerks out of office and put people in there that would not embarrass this council and I think that the public should know that. Thank you.
* * *
It was postponed for thirty days, Steve [Rice], you would have been back by then. Why do we have to call a special meeting when it was postponed for thirty days? The meeting was called right after Mr. Froling spoke.
* * *
Mr. Froling talked to you [Gush] after the meeting. He told me.
Plaintiffs' complaint contained three counts: defamation, intentional infliction of emotional distress and conspiracy to deny plaintiffs' rezoning request. The trial court granted summary disposition to defendant on Counts I and II, defamation and intentional infliction of emotional distress, ruling that the claims were barred by absolute privilege. MCR 2.116(C)(7). A year later, the court granted defendant's motion for summary disposition as to Count III, conspiracy, under MCR 2.116(C)(10). Count III also contained an intentional infliction of emotional distress claim. The court dismissed the emotional distress claim, ruling that plaintiffs did not allege facts sufficient to demonstrate severe emotional distress. Plaintiffs do not challenge the ruling.
II
Plaintiffs argue that the trial court erred in applying the absolute privilege doctrine. They assert that the court was required to ascertain whether defendant's statements were made while carrying out her official duties. If she were acting outside the scope of her duties, the privilege would not apply.
The doctrine of absolute privilege is narrow. Raymond v Croll, 233 Mich. 268; 206 N.W. 556 (1925); Grostick v Ellsworth, 158 Mich. App. 18, 22; 404 N.W.2d 685 (1987). The privilege extends to: 1) proceedings of legislative bodies; 2) judicial proceedings; and 3) communications by military and naval officers. Chonich v Ford, 115 Mich. App. 461, 465; 321 N.W.2d 693 (1982), citing Raymond, 272. It applies only to matters of public concern. Chonich, 468. The rationale for the privilege is to allow persons to express their views without fear of legal repercussions. Id., 468-469, citing Timmis v Bennett, 352 Mich. 355, 364; 89 N.W.2d 748 (1958). There is no remedy for damages in a defamation action if the communication at issue is absolutely privileged. See Schlinkert v Henderson, 331 Mich. 284, 290; 49 N.W.2d 180 (1951); Domestic Linen Supply Laundry Co v Stone, 111 Mich. App. 827, 837; 314 N.W.2d 773 (1981).
The communication at issue here was made by a city council member during the course of legislative proceedings. The absolute privilege for legislative bodies extends to subordinate bodies, such as a city council. See Gidday v Wakefield, 90 Mich. App. 752, 755-756; 282 N.W.2d 466 (1979). However, the communication will only be privileged if made while the public official was in the process of carrying out an official duty. Gidday, 756, citing Wachsmuth v Merchants' Nat'l Bank, 96 Mich. 426; 56 N.W. 9 (1893); Brunn v Weiss, 32 Mich. App. 428; 188 N.W.2d 904 (1971); Stewart v Troutt, 73 Mich. App. 378; 251 N.W.2d 594 (1977). Statements made by city council members in the course of their duties are absolutely privileged. Domestic Linen, 835.
It is clear that the statements here were made while defendant was carrying out her official duties in her legislative capacity. See Domestic Linen, supra; Gidday, supra. Defendant's duties as a city council member include revealing her belief that: 1) the mayor and plaintiffs colluded to call a special meeting; and 2) plaintiffs and the mayor were conspiring to have certain committee appointments made. The fact that defendant's statements were not made during a debate on an agenda item or in response to comments by another person does not defeat the privilege. See Chonich, 466. We conclude that the trial court did not err in ruling that plaintiffs' defamation claim was barred by defendant's absolute privilege.
III
The doctrine of absolute privilege may not apply to intentional infliction of emotional distress claims. See Domestic Linen, 837. The trial court dismissed plaintiffs' intentional infliction of emotional distress claim (Count II) based on privilege. On appeal, plaintiffs do not distinguish between the defamation claim (Count I) and the intentional infliction of emotional distress claim (Count II) for purposes of applying the absolute privilege doctrine. In fact, both claims arose from defendant's allegedly defamatory statements. Plaintiffs did not appeal from the trial court's dismissal of the intentional infliction of emotional distress claim contained in Count III.
We conclude that plaintiffs abandoned this issue by failing to argue in their appellate brief the merits of their allegation of error caused by the dismissal of Count II. See People v Kent, 194 Mich. App. 206, 209-210; 486 N.W.2d 110 (1992). Moreover, plaintiffs have not convinced us that failure to review this issue would result in manifest injustice or is necessary to a proper determination of the case. See Richards v Pierce, 162 Mich. App. 308, 316; 412 N.W.2d 725 (1987).
The trial court did not err in granting defendant's motion for summary disposition.
Affirmed.