Andrew Rocky Raczkowski v. Marty Knollenberg ( 2017 )

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ANDREW ROCKY RACZKOWSKI, UNPUBLISHED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.
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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.
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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
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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.
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