Stewart v. Troutt ( 1977 )

Bashara, P. J.

The appellant, a Romulus city councilman, brought this action for defamation against the appellee, the mayor of Romulus. The complaint alleged that the appellee made a number of defamatory statements at a city council meeting, regarding the appellant’s failure to pay property taxes on certain property.

The appellee moved for "accelerated and/or summary judgment” pursuant to GCR 1963, 116.1(3) and (5) and 117.2(1). The motion alleged a number of grounds, including the assertion that the appellee was addressing a meeting of a municipal legislative body and was absolutely privileged. The trial judge, without enumerating the specific ground of GCR 1963, 116.1(5), granted appellee’s motion for accelerated judgment on the basis of absolute privilege.

A hybrid motion for "accelerated and/or summary judgment” is looked upon with disfavor. Knapp v Dearborn, 60 Mich App 18, 26; 230 NW2d 293 (1975), Hobbs v Michigan State Highway Department, 58 Mich App 189, 190, n 1; 227 NW2d 286 (1975), lv granted, 394 Mich 837 (1975).

Appellee premised his motion for accelerated judgment on two grounds. The first ground was GCR 1963, 116.1(3), "the party asserting the claim lacks legal capacity to sue”. Nowhere in the motion is appellant’s capacity to bring this action challenged. We, therefore, conclude that this ground is inapplicable.

The other ground upon which appellee brings his motion for accelerated judgment is GCR 1963, 116.1(5). It states:

"(5) the claim is barred because of release, payment, prior judgment, statute of limitations, statute of frauds, infancy, or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.”

By process of elimination the only ground that could conceivably apply to absolute privilege is "other disability of the moving party”.

The Committee Notes reveal that GCR 1963, 116.1 was drafted from the substance of Court Rule No. 18 (1945). 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Committee Notes, p 324. The language of GCR 1963, 116.1(5) represents (with one addition, payment) the grouping of the defenses listed in subsections (e) through (j) of Court Rule No. 18 (1945). Subsection (i) provided:

"(i) That the cause of action did not accrue against defendant because of his infancy or other disability.”

See Bush v Oscoda Area Schools, 72 Mich App 670, 681, n 8; 250 NW2d 759 (1976) (Peterson, J., concurring).

It was not the intention of the drafters in drafting GCR 1963, 116.1 to "enlarge or diminish” the defenses available under Court Rule No. 18 (1945). 1 Honigman & Hawkins, supra. Motions brought pursuant to GCR 1963, 116.1 were intended to be restricted to the specific claims set forth in the rule. 1 Gilmore, Michigan Civil Procedure Before Trial (1964), § 12.500, p 565. Subsection (i) of Court Rule No. 18, § 1 (1945), was specifically aimed at such disabilities as infancy, insanity, or incompetency. See generally 1 Searl, Michigan Pleading and Practice (1934), § 121, p 183. See also Bush v Oscoda Area Schools, supra.

Court Rule No. 18, § l(i) was based on Rules 106-110 promulgated under the New York Civil Practice Act of 1921. Court Rule No. 18 (1931), notes p 34. Reference to New York decisions discloses that "other disability” has been applied to competency situations. See Anonymous v Anonymous, 166 Misc 861; 2 NYS2d 663 (1938).

For the above stated reasons, we do not believe that the language of "other disability of the moving party” contained in GCR 1963, 116.1(5), was intended to include the defense of absolute privilege.

The remaining ground asserted by appellee was that the appellant failed to state a claim upon which relief could be granted. GCR 1963, 117.2(1). Although the trial judge granted the motion on the basis of accelerated judgment, we may still consider whether summary judgment would be appropriate based on absolute privilege, since there is no prejudice to the appellant. Cf. Unger v Forest Home Twp, 65 Mich App 614, 616-617, n 1; 237 NW2d 582 (1975), Birch Run Nursery v Jemal, 52 Mich App 23, 24, n 1; 216 NW2d 488 (1974), modified on other grounds, 393 Mich 775; 224 NW2d 282 (1974). The appellant was permitted to argue against the application of absolute privilege.

A motion for summary judgment brought under GCR 1963, 117.2(1), merely tests the legal sufficiency of the claim as determined from the pleadings alone. Todd v Biglow, 51 Mich App 346, 349; 214 NW2d 733 (1974), lv den, 391 Mich 816 (1974), 1 Honigman & Hawkins, supra, Committee Notes to GCR 1963, 117, pp 353-355. For the purposes of that motion, both at the trial and appellate levels, every well-pled allegation in the complaint is assumed to be true. Bielski v Wolverine Insurance Co, 379 Mich 280, 283; 150 NW2d 788 (1967). The test is whether the plaintiffs claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Crowther v Ross Chemical & Mfg Co, 42 Mich App 426, 431; 202 NW2d 577 (1972).

The motion asserts that the alleged defamatory statements were made by a municipal officer addressing a municipal legislative body and were absolutely privileged. The time, place, and attending circumstances surrounding the defamation are an important consideration, but not dispositive. Bolton v Walker, 197 Mich 699, 705; 164 NW 420 (1917). A municipal employee is only entitled to an absolute privilege if the alleged defamatory statements were made in the course of carrying out an official duty. See Brunn v Weiss, 32 Mich App 428, 430-431; 188 NW2d 904 (1971), and cases cited therein.

Appellant’s nearest allegation to whether the appellee was carrying out an official duty, is that the appellee "failed to act timely to direct the matter to the proper authorities pursuant to” MCLA 211.150; MSA 7.208, and MCLA 211.152; MSA 7.210. These statutes provide procedures whereby the state tax commission may assess property tax deficiencies. However, this cannot be taken as an allegation that the appellee was not acting in the course of carrying out an official duty when the alleged defamations arose.

Since the appellant’s complaint does not allege that the appellee was acting outside the course of carrying out an official duty, and appellee’s motion does not attack this failure, the proper remedy is to reverse and remand. The appellant should be given an opportunity to amend his complaint to allege facts that disclose the appellee was not acting in the course of carrying out an official duty. If appellant is unable to so allege,¹ summary judgment for failure to state a claim, GCR 1963, 117.2(1), should be entered in favor of appellee.

Reversed and remanded in accordance with this opinion. Costs to abide the outcome.

N. J. Kaufman, J., concurred.

1 It should be noted that the present complaint cites a number of conclusions of law, rather than statements of fact. If, on remand, plaintiff is only able to cite conclusions, summary judgment is proper.