Andrew Rocky Raczkowski v. Marty Knollenberg ( 2017 )


Menu:
  •                            STATE OF MICHIGAN
    COURT OF APPEALS
    ANDREW ROCKY RACZKOWSKI,                                           UNPUBLISHED
    December 26, 2017
    Plaintiff-Appellant,
    v                                                                  No. 336052
    Ingham Circuit Court
    MARTY KNOLLENBERG, MARTY                                           LC No. 16-000571-CZ
    KNOLLENBERG FOR STATE SENATE,
    OAKLAND COUNTY VOTERS ALLIANCE,
    MICHAEL MURRAY, doing business as
    MURRAY COMMUNICATIONS, and
    JENNIFER MURRAY,
    Defendants-Appellees,
    and
    LASERCOM LLC, doing business as
    LASERCOM,
    Defendant.
    Before: O’CONNELL, P.J., and BECKERING and STEPHENS, JJ.
    PER CURIAM.
    Plaintiff, Andrew Rocky Raczkowski, appeals as of right the trial court’s grant of
    summary disposition under MCR 2.116(C)(7) (statute of limitations) and (C)(8) (failure to state a
    claim) in favor of the Knollenberg defendants, which include State Senator Marty Knollenberg,
    his campaign, and other people and business entities related to his successful 2014 campaign for
    State Senate. The trial court dismissed Raczkowski’s complaint as untimely. We affirm.
    I. BACKGROUND
    Raczkowski and Knollenberg ran for the Republican nomination for the State Senate seat
    in the 13th district in 2014. Fox 2 News in Detroit ran a story implicating Raczkowski in raising
    money for political campaigns for elections he did not run in by targeting veterans and seniors.
    A mailer, paid for by Oakland County Voters Alliance, reproduced the allegations made by Fox
    2 News with slight embellishments.
    -1-
    Raczkowski filed a complaint in July 2016, naming Marty Knollenberg, Marty
    Knollenberg for State Senate (Knollenberg’s campaign), Oakland County Voters Alliance,
    Michael Murray, d/b/a/ Murray Communications, Jennifer Murray, d/b/a/ an unincorporated
    entity, and Lasercom LLC, d/b/a Lasercom, as defendants. Raczkowski alleged that
    Knollenberg’s campaign created the Oakland County Voters Alliance to hide the campaign’s role
    in producing the mailer for the purpose of making defamatory statements about Raczkowski in
    automated telephone calls, a YouTube video, and the mailer.
    The Knollenberg defendants, consisting of all defendants except Lasercom,1 filed a
    motion for summary disposition under MCR 2.116(C)(5) (standing), (C)(7) (statute of
    limitations), and (C)(8) (failure to state a claim). Pertinent to this appeal, the Knollenberg
    defendants argued that Raczkowski brought the defamation claim beyond the one-year statutory
    period of limitations. Raczkowski responded by arguing that the Knollenberg defendants
    fraudulently concealed their identity behind the facade of the Oakland County Voters Alliance to
    prevent Raczkowski from discovering who made the defamatory statement. Consequently,
    Raczkowski argued, the statutory period of limitations was tolled under MCL 600.5855, and his
    complaint was timely.
    The trial court granted the Knollenberg defendants’ motion for summary disposition.
    The trial court ruled that Raczkowski filed the complaint after the expiration of the one-year
    statutory period of limitations for a defamation claim at MCL 600.5805(9). The trial court
    further concluded that the two-year period of limitations at MCL 600.5855, tolled by fraudulent
    concealment of the tortfeasor’s identity, did not apply. The trial court found that Raczkowski
    submitted no evidence that the Knollenberg defendants fraudulently concealed their identity or
    that Raczkowski attempted to discover it. The trial court noted that Raczkowski’s ignorance of
    the identity of the Knollenberg defendants’ identities did not establish that they fraudulently
    concealed them.
    II. STANDARD OF REVIEW
    This Court reviews a ruling on a motion for summary disposition de novo. Maiden v
    Rozwood, 
    461 Mich. 109
    , 118; 597 NW2d 817 (1999). We also review a question of statutory
    interpretation de novo. Mitan v Campbell, 
    474 Mich. 21
    , 23; 706 NW2d 420 (2005).
    MCR 2.116(C)(7) permits dismissal of an action on the basis of a statute of limitations.
    Summary disposition under MCR 2.116(C)(8) is appropriate if the “opposing party has failed to
    state a claim on which relief can be granted.” MCR 2.116(C)(8). A summary disposition motion
    under MCR 2.116(C)(8) “tests the legal sufficiency of a claim and must be determined on the
    basis of the pleadings alone.” Lakin v Rund, 
    318 Mich. App. 127
    , 131; 896 NW2d 76 (2016).
    1
    Defendant Lasercom separately moved for summary disposition under MCR 2.116(C)(7)
    (statute of limitations), (C)(8) (failure to state a claim), and (C)(10) (no genuine issue of material
    fact), arguing that it merely printed the mailer that contained the allegedly defamatory statement
    and, thus, was not liable. Raczkowski agreed to dismiss Lasercom as a defendant, and Lasercom
    is not a party to this appeal.
    -2-
    This Court accepts as true all factual allegations and any reasonable inferences flowing from
    those allegations. 
    Id. III. ANALYSIS
    A defamation claim must be brought within one year of accrual. MCL 600.5805(1) and
    (9); 
    Mitan, 474 Mich. at 23
    . A defamation claim accrues when the defamatory statement was
    made. 
    Mitan, 474 Mich. at 25
    ; see also MCL 600.5827.
    Raczkowski does not contest that he filed the complaint more than one year after the
    claim accrued. Rather, the parties dispute whether the Knollenberg campaign’s use of the
    Oakland County Voters Alliance to produce the mailer constituted fraudulent concealment that
    tolled the period of limitations.
    MCL 600.5855 provides:
    If a person who is or may be liable for any claim fraudulently conceals the
    existence of the claim or the identity of any person who is liable for the claim
    from the knowledge of the person entitled to sue on the claim, the action may be
    commenced at any time within 2 years after the person who is entitled to bring the
    action discovers, or should have discovered, the existence of the claim or the
    identity of the person who is liable for the claim, although the action would
    otherwise be barred by the period of limitations.
    To demonstrate fraudulent concealment, the “plaintiff must plead in the complaint the
    acts or misrepresentations that comprised the fraudulent concealment.” Sills v Oakland Gen
    Hosp, 
    220 Mich. App. 303
    , 310; 559 NW2d 348 (1996). The plaintiff must show that the
    defendant acted affirmatively to prevent discovery The Meyer and Anna Prentis Family
    Foundation, Inc v Barbara Ann Karmanos Cancer Institute, 
    266 Mich. App. 39
    , 48; 698 NW2d
    900 (2005). The defendant’s silence will not suffice. 
    Sills, 220 Mich. App. at 310
    . Furthermore,
    the “plaintiff’s lack of diligence” will not “toll the period of limitations.” Prentis Family
    Foundation, 
    Inc, 266 Mich. App. at 48
    .
    Applying this tolling provision, this Court relied on “the entire constellation of facts that
    were known or should have been known” to the plaintiff to conclude that the fraudulent
    concealment exception did not toll the statutory period of limitations. Doe v Roman Catholic
    Archbishop of the Archdiocese of Detroit, 
    264 Mich. App. 632
    , 644; 692 NW2d 398 (2004). In
    Doe, this Court determined that the plaintiff’s claims against the Archdiocese for sexual abuse
    perpetrated on him by a priest several years before were late because the plaintiff should have
    known that he had a possible cause of action against the Archdiocese long before he brought the
    complaint. 
    Id. at 635,
    644-645. This Court further noted that if the plaintiff was able to discover
    the basis of the claim “through his own investigation, failure to timely discover it cannot be
    attributable to defendant.” 
    Id. at 645
    n 2.
    Similarly, in this case, Raczkowski singles out the Knollenberg campaign’s use of the
    Oakland County Voters Alliance to produce the mailer to argue fraudulent concealment.
    Although Raczkowski did not specify in the complaint how or when he learned about the
    Knollenberg campaign’s connection with the Oakland County Voters Alliance, he later stated
    -3-
    that he learned about it through investigation involving the postal service. The Knollenberg
    campaign may have concealed its identity behind the Oakland County Voters Alliance, but
    Raczkowski did not allege facts showing that the Knollenberg campaign prevented anyone from
    discovering its affiliation with the Oakland County Voters Alliance. In short, Raczkowski’s
    ability to learn the true identity of the Oakland County Voters Alliance undermines his argument
    that the Knollenberg defendants fraudulently concealed their identity.
    Raczkowski’s reliance on Hope-Jackson v Washington, 
    311 Mich. App. 602
    ; 877 NW2d
    736 (2015), is unavailing. In Hope-Jackson, this Court concluded that fraudulent concealment
    tolled the statutory limitations period because the person who posted the defamatory statements
    to a website “actively concealed” her role as the website’s administrator and author of the
    defamatory posts by lying under oath about being the website’s 
    administrator. 311 Mich. App. at 609
    , 617-618. By contrast, in this case, Raczkowski did not show that whoever formed the
    Alliance concealed their identity in a manner intended to prevent discovery, even if Raczkowski
    expended some unspecified amount of effort to discover their identity.2 In sum, Raczkowski’s
    vague statements about when and how he learned that the Knollenberg campaign made the
    defamatory statement are insufficient to show that the Knollenberg defendants used fraud to
    conceal their identity.3
    We affirm.
    /s/ Peter D. O’Connell
    /s/ Jane M. Beckering
    /s/ Cynthia Diane Stephens
    2
    In this case, Raczkowski deduces that since the Alliance was not a registered entity and that
    Raczkowski did not know the identities of the persons who formed or funded the Alliance, the
    named defendants concealed the information.
    3
    We disagree with defendants that Raczkowski waived other dispositive issues on appeal. The
    trial court’s ruling rested on its conclusion that Raczkowski failed to show fraudulent
    concealment, and Raczkowski properly presented and briefed the issue.
    -4-
    

Document Info

Docket Number: 336052

Filed Date: 12/26/2017

Precedential Status: Non-Precedential

Modified Date: 4/18/2021