Martha Redmond v. Theresa Heller ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MARTHA REDMOND, ARTHUR MCNABB, and FOR PUBLICATION
REDMOND FUNERAL HOME, May 28, 2020
9:05 a.m.
Plaintiffs/Counterdefendants-
Appellees,
v No. 347505
Kalamazoo Circuit Court
THERESA HELLER, LC No. 2017-000364-NO
Defendant-Appellant,
and
PAUL HELLER,
Defendant,
and
DENNIS LEWIS WOLF,
Defendant-Counterplaintiff.
MARTHA REDMOND, ARTHUR MCNABB, and
REDMOND FUNERAL HOME,
Plaintiffs/Counterdefendants-
Appellees,
v No. 347558
Kalamazoo Circuit Court
THERESA HELLER and PAUL HELLER, LC No. 2017-000364-NO
Defendants,
and
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DENNIS LEWIS WOLF,
Defendant/Counterplaintiff-Appellant.
Before: MURRAY, C.J., and METER and K. F. KELLY, JJ.
MURRAY, C.J.
I. INTRODUCTION
In these consolidated appeals involving allegedly defamatory publications, defendants,
Theresa Heller and Dennis Lewis Wolf, separately appeal by right the trial court’s judgment in
favor of plaintiffs, Martha Redmond, Arthur McNabb, and Redmond Funeral Home. Specifically,
after it granted plaintiffs’ motion for partial summary disposition, the trial court entered orders
enjoining Theresa and Dennis from publishing certain defamatory statements about Redmond,
McNabb, and Redmond Funeral Home. We affirm in part and reverse in part the order granting
plaintiffs’ motion for partial summary disposition, vacate the permanent injunctions, and remand
for further proceedings consistent with this opinion.
II. BASIC FACTS
The origins of this case arose from the death of Theresa and Dennis’s twelve-year-old son,
Charles Wolf, in July 2015. The medical examiner’s office released Charles’s body to McNabb
of Redmond Funeral Home on July 28, 2015. McNabb testified that he picked up Charles’s body
with another staffer from Redmond Funeral Home, Shawn Winfield, and transported it to the
funeral home. Redmond, owner of Redmond Funeral Home, was arranging Charles’s funeral with
Theresa’s parents when Charles’s body arrived. Craig Daily embalmed and washed the body, and
then McNabb and Winfield dressed and prepared the body for viewing. The visitation and funeral
occurred on July 31, 2015. It is undisputed that McNabb did not work Charles’ visitation or funeral
because he was working at a funeral at another location.
After Theresa discovered what she considered to be the “outright lies” involved with the
investigation into her son’s death, she decided to investigate every name associated with the
handling of her son’s body. She obtained documents from the coroner’s office and discovered that
McNabb signed for her son’s remains, and subsequently discovered that McNabb was a convicted
sex offender. Theresa called Redmond in the fall of 2015, to warn her about McNabb, and
according to Theresa, Redmond lied, and said that she did not know that McNabb was a sex
offender.
Police reports associated with McNabb’s conviction show that McNabb met a 15-year-old
high school student at a computer game store. McNabb admitted that he purchased items for the
teen, and the teen told an investigating officer that McNabb performed oral sex on him. The reports
also suggest that McNabb engaged in grooming behavior, as a witness described McNabb as
repeatedly hanging out at an Arby’s restaurant, and interacting with a teen. McNabb was convicted
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of two counts of third-degree criminal sexual conduct, MCL 750.520d, and was sentenced to
prison.
After his conviction, the Board of Examiners in Mortuary Science Report revoked
McNabb’s license in November 2007, but the Board reinstated his license in October 2015. At a
meeting held in November 2015, Redmond Funeral Home’s board of directors appointed McNabb
as the funeral director for one of its branch locations.
In June 2016, Theresa e-mailed Redmond, and asked for information about her son’s
funeral. After receiving a response, she asked for information about the specific time that her son’s
body arrived at the funeral home, but according to Redmond, she did not keep records of arrival
times. In that same month, Paul Heller—Theresa’s brother—posted an Internet blog entry
discussing McNabb, implying that there was a conspiracy of sex predators involved with his
nephew’s body. He wrote that McNabb was a “pedophile” and “child rapist who had kiddie porn
on his computer as well, all of which got him sent to prison for six and a half years.” He further
wrote: “Who is to say that anything untoward happened? Who is to say anything didn’t? Where
does the benefit of the doubt lie? You decide.” He then wrote that McNabb was not one of
“WMed’s pedophiles,” but that he picked up the body, and it was a “strange coincidence” that
another man from “WMed” had been accused of sexual misconduct, and his name also appeared
on documents associated with Charles’s body.
In November 2016, Redmond Funeral Home’s lawyer sent Theresa a letter, noting that
Theresa had contacted the Paw Paw State Police Post no fewer than 37 times, had been seen driving
by the funeral home on several occasions, and had been posting false claims on the Internet. He
demanded that she cease and desist all contact with or regarding Redmond Funeral Home. The
following month Theresa was again in contact with the Michigan State Police. She wrote to an
officer that she had spoken with another local funeral director, who told her that McNabb was the
“worst of the worst.” That same month she also filed a complaint against Redmond Funeral Home
with the Department of Licensing and Regulatory Affairs (LARA).
Theresa also posted messages on Facebook in December 2016, describing McNabb as a
“sick pedophile” who had “violent child porn.” She wrote that Redmond’s lawyers were trying to
intimidate her, and prevent her from exercising her First Amendment rights, and noted that the
funeral home had two locations, one in Kalamazoo and one in Parchment. Theresa also noted that
the funeral home catered to Catholic churches, and that she was trying to get the word out “about
the pedophile that my poor son’s body was alone with for three days at REDMOND FUNERAL
HOME IN KALAMAZOO.” She also wrote that the “perv is Arthur McNabb who raped a boy in
Paw Paw and served six years in prison.” She wrote that Redmond helped McNabb get his license
back, and that it was Theresa’s “mission” to make sure that no other child’s body passed “through
this monster’s hands.” She then posted a link to McNabb’s sex offender registry page, and asked
everyone to get the word out about the funeral home and McNabb. She also identified Redmond’s
law firm, and opined that they did not have any problem “covering up for pedophiles.”
Theresa made additional statements against Redmond and McNabb in another post:
It is Arthur McNabb. This is a danger because he had moved from one
small town to another all over [southwest] Michigan before he was caught in Paw
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Paw at the age of 38. He hunts at fast food places, video gaming stores, and funeral
homes. This is thanks to MARTHA REDMOND, who ruined her family name by
hiring this pedophile on the cheap. She lied to me, and not only my son but his
cousins and all his friends were exposed to this pervert at Charlie’s funeral. When
Charlie’s father and I objected, she lied to us, assaulted Charlie’s father, and sicced
[sic] her brother’s law firm, LEWIS REED AND ALLEN, on me. This, after losing
my precious little boy.
In March 2017, Theresa filed a complaint against Redmond Funeral Home with the Better Business
Bureau.
Throughout the spring and summer of 2017, Theresa continued to post statements about
defendants on the Internet. For example, in an April 2017 post to Facebook, Theresa wrote that
McNabb “served six years in prison for raping boys he picked from grieving families.” In July
2017, she made a Facebook post in which she identified McNabb’s home address, and stated that
his “preferred victims”—present tense—were “young teenage boys.” In another post, Theresa
stated that the Board reinstated McNabb’s license because, in its view, his inappropriate
relationship had nothing to do with his status as a funeral director. She wrote immediately after:
“What? He didn’t sodomize his customers[’] children? Some of your kids were there at Charlie’s
Funeral. How does that make you feel?” In an August 2017 post, Theresa again warned that
McNabb “targets teenage boys who like video games and nice shirts.”
By August 2017, plaintiffs had seen enough, and sued Theresa, Dennis, and Paul. They
alleged that Theresa had engaged in threatening and intimidating behavior, which included driving
past the funeral home slowly, and posting false messages to social media. McNabb alleged under
Count I that each defendant violated MCL 28.730 by using the sex offender registry to injure,
harass, or commit a crime against an individual named in the registry. Plaintiffs alleged under
Count II that each defendant engaged in business defamation, which harmed their business
interests, while under Count III plaintiffs alleged that each defendant invaded each plaintiff’s
privacy by disseminating information that put them in a false light. Under Count IV, plaintiffs
alleged intentional infliction of emotional distress, harassment, stalking, and unconsented contact,
which they claimed violated MCL 600.2954 and MCL 750.411h. For Count V, Redmond and
McNabb alleged that each defendant posted false and defamatory statements that amounted to
defamation per se, and harmed them. In a final claim, Count VI, plaintiffs alleged that each
defendant had intentionally caused them emotional distress. Plaintiffs asked the trial court to
award damages and equitable relief in the form of an injunction against further defamatory
postings.
Plaintiffs also asked the trial court to enter a temporary restraining order, and to show cause
why a preliminary injunction should not be entered to prohibit defendants from continuing to post
false statements. The trial court entered the temporary restraining order on August 29, 2017, and
after a brief hearing, a preliminary injunction. The preliminary injunction ordered, in relevant part,
that Theresa and Paul were “restrained from speaking, delivering, publishing, emailing or
disseminating information in any manner regarding Arthur McNabb’s sex offender status, his
address and employment status to anyone anywhere.”
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Theresa quickly moved for summary disposition on the ground that all of the claims against
her were barred by the one-year statute of limitations. She noted that plaintiffs alleged that the
defamatory statements were part of a “campaign” that began in June and July 2016. Because
plaintiffs did not bring suit until August 2017, she argued that all of plaintiffs’ claims were
untimely. She also argued that Count I had to be dismissed because the cited statute, MCL 28.730,
did not apply to defendants, and so plaintiffs failed to state a claim upon which relief could be
granted.
The trial court determined that the period of limitations applied separately to each
defamatory statement. The court also noted that Theresa had not agreed to dismiss the claim
against Paul and, for that reason, it declined to dismiss the defamation claim against him at that
time. It also concluded that there were no grounds for dismissing the claims under MCR
2.116(C)(8), and it denied Theresa’s motion.
Plaintiffs subsequently moved to amend their complaint. They alleged that Theresa had
made another complaint to LARA, and made false statements within that complaint, and moved
to add a count of abuse of process premised on those false allegations. In the LARA complaint,
Theresa referred to McNabb as the “convicted gay pedophile,” and alleged that he had “access to
my son’s body for the following three days.” She further alleged that there was “now another
victim” that has been “alleged to state police, a grieving boy that the pedophile had been
‘counseling.’ ” Plaintiffs separately moved to have Theresa show cause why she should not be
held in contempt for failing to remove her Facebook posts as directed by the trial court in its
preliminary injunctions.
The trial court held a combined hearing on the motions and granted leave to amend, but
was not convinced that Theresa had knowingly violated its order. Accordingly, it did not find her
in contempt. Plaintiffs amended their complaint to include a claim for abuse of process under
Count VII.
Plaintiffs subsequently moved for partial summary disposition under MCR 2.116(C)(10).
They argued that Theresa’s actions went far beyond merely reposting or forwarding information
from the sex offender registry—she added that McNabb was a pedophile, and described him as
putting children at risk and hunting children, implying that he was currently molesting children.
Plaintiffs also argued that Theresa falsely stated that the children who attended Charles’s funeral
were exposed to McNabb, as the undisputed evidence showed that he was not at the visitation or
funeral. She had, in plaintiffs’ opinion, sounded an alarm about McNabb, which caused him to
fear for his safety.
In addition, plaintiffs stated an intention to dismiss their claims for monetary relief should
the court agree that there was no genuine issue as to any material fact that they were entitled to a
permanent injunction, as Theresa’s statements were defamatory per se, and were harming
plaintiffs’ goodwill. Because Theresa demonstrated that she would continue to harass plaintiffs
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by posting false statements along with McNabb’s registry information, they sought a permanent
injunction against her continued harassing behavior.1
In response to plaintiffs’ motion for partial summary disposition, Theresa argued that
plaintiffs failed to identify and show that any of the material facts supporting their claims were
undisputed. She also argued that Michigan law established that pedophiles are likely to reoffend
and, for that reason, Theresa’s statements that McNabb posed a current danger to children were
true as a matter of law. Additionally, Theresa argued that summary disposition would be
inappropriate because discovery had not been completed, in part because in his deposition McNabb
refused to answer 57 questions, which gave rise to adverse inferences that created a question of
material fact.2 Besides that, Theresa argued that her statements could be found to be true. She
explained that her statement that McNabb was a pedophile could be found to be true because
McNabb was convicted of a sex act with a 15-year-old. Theresa argued too that McNabb was a
limited-purpose public figure because he was licensed by the state.3
In making its decision, the trial court recognized that a statement is not defamatory unless
it tended to lower a person’s reputation in the community, and deterred persons from dealing with
that individual. The statement also had to be one that could be reasonably interpreted as a
statement of an actual fact. The court agreed that plaintiffs had established a real and imminent
danger that Theresa’s remarks would damage their reputations. Her comments, the court
explained, were more than “just hyperbole,” and amounted to harassment; Theresa was not just
engaging in advocacy. Instead, the statements were harassing plaintiffs over their status and
continued operations, recognizing that Theresa was trying to “rally the troops” against McNabb
and Redmond for hiring him. The court cited Theresa’s statement that she wanted to inform the
public about what happened to Charles after he died. The court found that this statement showed
that Theresa was implying that something had in fact happened to Charles’s body when read in
context with the next statement about sodomizing his customers’ children. The court concluded
that the statements that McNabb “hunts” in various places thanks to Redmond amounted to an
assertion that McNabb’s behaviors were “ongoing,” and that Redmond fostered that behavior,
without any substantiation or proof. The court also rejected the notion that the registry could be
used to call for others to attack or ostracize a person—it was merely a tool to promote vigilance.
1
Paul responded to plaintiffs’ motion for summary disposition, and moved for summary
disposition on his own behalf, arguing that the undisputed evidence showed that he did not engage
in any of the behaviors about which plaintiffs complained. Plaintiffs did not oppose the motion,
and the trial court entered a stipulated order dismissing the claims against Paul, and vacating the
preliminary injunction against him.
2
Theresa moved to compel discovery based on McNabb’s refusal to answer numerous questions
at his deposition without the assertion of a valid privilege, but the trial court determined that the
details relative to McNabb’s 2005 conviction were not relevant, and denied the motion to compel.
3
Dennis also opposed plaintiffs’ motion for partial summary disposition, arguing that anything he
said was protected, and there were questions of fact regarding an incident at the funeral home when
he confronted Redmond.
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The court determined that a permanent injunction against Theresa would be appropriate because
the limitations on her were substantially outweighed by the danger of harm to plaintiffs.
As a result, the trial court entered an order granting plaintiffs’ motion for partial summary
disposition as to Theresa on September 17, 2018,4 and entered a judgment and permanent
injunction against Theresa providing that:
1. Defendant Theresa Heller and her representatives and those acting in
concert with her are restrained from speaking, delivering, publishing, emailing or
disseminating information in any manner regarding Arthur McNabb’s sex offender
status, his address and employment status to anyone anywhere.
2. Defendant Theresa Heller and her representatives and those acting in
concert with her are hereby enjoined and restrained from defaming, stalking,
harassing the plaintiffs, in any manner whatsoever, including through postings on
the internet, as well as though unconsented contact with any of the plaintiffs.[5]
In February 2019, plaintiffs moved to show cause why Theresa should not be held in
contempt of court for posting messages on her Facebook account along with a link to court
documents, such as transcripts, that she put on her Google drive. Theresa labeled the transcripts
“pedophile deposition” and “dirty Martha,” and wrote that this “man can be licensed as a Mortician
in Michigan,” and it was a disgrace. She closed with “Pure Filth Michigan.” Plaintiffs argued that
these posts violated the permanent injunction.
At the ensuing hearing on the motion to show cause, the trial court expressed concern that
Theresa was going to do “whatever she can to shed a bad light” on plaintiffs, yet in the end chose
not to find Theresa in contempt.
III. ANALYSIS
A. THERESA’S MOTION FOR SUMMARY DISPOSITION6
Theresa argues that the trial court erred when it denied her motion for summary disposition
because (1) all of plaintiffs’ claims were untimely, (2) MCL 28.730 did not apply to her, (3) her
report to LARA was absolutely privileged, and (4) plaintiffs failed to state a claim in their amended
complaint.
4
After a hearing, the trial court dismissed Dennis’s counterclaim based on his lack of participation
in the case and failure to show for his deposition.
5
The trial court entered an order granting plaintiffs’ motion for summary disposition as to Dennis
on January 17, 2019, and entered a judgment and permanent injunction against Dennis with the
same terms as applied to Theresa.
6
Our decision regarding Theresa’s claims and the injunction entered against her apply with equal
force to Dennis.
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Generally, to preserve a claim of error for appellate review, the party claiming the error
must raise the issue in the trial court. Walters v Nadell, 481 Mich. 377, 387; 751 NW2d 431 (2008).
Here, Theresa preserved her claims of error regarding the trial court’s denial of her motion for
summary disposition on the grounds that the claims were untimely, and because MCL 28.730 does
not apply to her.
Theresa did not, however, at any point move to dismiss plaintiffs’ abuse of process claim.
Although she preserved the argument that the trial court abused its discretion when it granted the
motion to amend the complaint to add the abuse of process claim, she did not preserve the
argument that the trial court should have dismissed the new count raised in the amended complaint
under MCR 2.116(C)(8) or (C)(10). Although we have the discretion to consider arguments that
were not properly preserved for appellate review, we are under no obligation to do so. Id. Whether
to dismiss the abuse of process claim should be first addressed in the trial court, where the parties
would have the opportunity to develop the record and otherwise litigate the allegations. See Napier
v Jacobs, 429 Mich. 222, 228-229; 414 NW2d 862 (1987).7
1. MOOTNESS
As a preliminary matter, plaintiffs argue that this Court should not address Theresa’s
challenge to the trial court’s order denying her motion for summary disposition because any
alleged error is moot. See, e.g., Barrow v Detroit Election Comm, 305 Mich. App. 649, 659; 854
NW2d 489 (2014) (stating that an issue is moot when an event has occurred that makes it
impossible for this Court to grant relief). Specifically, plaintiffs maintain that, because they
voluntarily dismissed their claims for damages after they obtained injunctive relief, even if this
Court were to conclude that the trial court erred when it denied Theresa’s motion for summary
disposition, this Court could not grant relief because there are no claims left to dismiss.
However, as Theresa correctly notes, an injunction is a remedy, not an independent cause
of action. See Terlecki v Stewart, 278 Mich. App. 644, 663; 754 NW2d 899 (2008). Because a
remedy must be supported by an underlying cause of action, the trial court could not enter an
injunction premised on untimely claims. See id. at 663-664 (stating that equitable relief was
unavailable to the plaintiffs because all their claims had been dismissed). In fact, the trial court
granted plaintiffs’ motion for summary disposition, and entered a judgment providing plaintiffs
with injunctive relief after it determined that plaintiffs had established that Theresa defamed
Redmond, McNabb, and Redmond Funeral Home. Consequently, were we to conclude that the
trial court should have dismissed plaintiffs’ claims, then reversal of the trial court’s judgment and
order would have to ensue. Review of the trial court’s order is not moot.
2. PERIOD OF LIMITATIONS
The Legislature has prohibited a person from bringing “an action to recover damages for
injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone
7
“Although cases decided before November 1, 1990, are not binding precedent, MCR 7.215(J)(1),
they nevertheless can be considered persuasive authority[.]” In re Stillwell Trust, 299 Mich. App.
289, 299 n 1; 829 NW2d 353 (2012) (citation omitted).
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through whom the plaintiff claims, the action is commenced within” the applicable period of
limitations. MCL 600.5805(1). “The period of limitations is 1 year for an action charging libel or
slander.” MCL 600.5805(11). A claim accrues “at the time the wrong upon which the claim is
based was done regardless of the time when damage results.” MCL 600.5827.
Contrary to Theresa’s arguments that the period of limitations for defamatory statements
begins to run after the first defamatory statement, and that merely repeating the defamatory
statement does not extend the period of limitations, the Supreme Court long ago recognized that
each publication of a libelous or slanderous statement was independently actionable. See Leonard
v Pope, 27 Mich. 145 (1873). In Leonard, the Court held that a plaintiff could bring a separate
action against a publisher for each printed newspaper containing the allegedly libelous statement
delivered to subscribers. Id. at 149-150. Since Leonard, Michigan courts have continued to
recognize that each act amounting to libel or slander could serve as a separate claim subject to a
separate period of limitations, or could be joined in one action. See Grist v Upjohn Co, 1 Mich
App 72, 85; 134 NW2d 358 (1965); Brewer v Chase, 121 Mich. 526, 529; 80 N.W. 575 (1899)
(agreeing with authorities that state that every repetition is a fresh defamation); see also 2
Restatement Torts, 2d, § 577A, p 208 (stating that normally each of several communications to a
third person by the same defamer is a separate publication, but explaining that an aggregate
communication is a single publication). But in either case, a plaintiff’s proofs and recovery would
be limited to those libels or slanders that occurred within one year of the suit. See Grist, 1 Mich
App at 85 (stating that each slanderous act is a basis for an action, and the statute of limitations
runs from the date of each such act).
Theresa’s reliance on Mitan v Campbell, 474 Mich. 21; 706 NW2d 420 (2005), is
misplaced. The Mitan Court addressed a situation where the defendant allegedly defamed the
plaintiff during a television interview that was not broadcast until some days after the interview.
Id. at 22-23. The plaintiff sued the defendant more than one year after the interview, but within
one year of the broadcast. Id. at 22-23. The Supreme Court had to determine whether the period
of limitations began with the defamatory statement, or with the subsequent broadcast by a third
party; the Court concluded that the original defamatory statement constituted the point in time
when the claim accrued. Id. at 22. The Court explained that “republication, regardless of whether
the republication was intended by the speaker,” did not restart the period of limitations. Id. at 25.
The Court, however, clarified that it was only addressing the defendant’s personal liability for a
statement under circumstances in which there was evidence that the defendant expected a third
party to republish the defamatory statement. Id. at 25. The Court did not address those
circumstances where the speaker repeated her defamatory statement over time, or where the
speaker made separate and distinct defamatory statements over time. The sole question before the
Court was whether a defendant could be held liable for a third party’s republication of the
defendant’s statement. Id. at 25 n 4. Because this case does not involve republication by a third
party, Mitan does not apply.8
8
Plaintiffs alleged several causes of action that—although supported by the same set of facts—
were distinct causes of action. See Wilkerson v Carlo, 101 Mich. App. 629, 631-632; 300 NW2d
658 (1980). For example, this Court has held that the period of limitations for libel and slander
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Here, plaintiffs pleaded that Theresa’s defamatory campaign began in June 2016, and
pleaded discrete defamatory publications that Theresa made on specific dates. The trial court
properly dismissed the one publication that Paul allegedly made more than a year before plaintiffs
filed their complaint, but properly allowed the remaining allegations to continue to serve as the
basis for the defamation claim because they were published less than a year prior to the filing of
the complaint. The trial court properly applied Leonard and Grist to allow a single claim of
defamation premised on the allegations of distinct defamatory publications that occurred within
the one-year period of limitations. Consequently, it did not err when it denied Theresa’s motion
for summary disposition9 under MCR 2.116(C)(7).10
3. SORA CLAIM
Persons convicted of certain specified crimes are required to register under the Sex
Offenders Registration Act (SORA), MCL 28.721 et seq., and to abide by certain conditions. See
People v Tucker, 312 Mich. App. 645, 655-659; 879 NW2d 906 (2015) (discussing the history of
the SORA). The information collected for the registration or report is generally confidential and
does not apply to a claim for false light. Derderian v Genesys Health Care Sys, 263 Mich. App.
364, 386; 689 NW2d 145 (2004). Similarly, the one-year period of limitation does not apply to a
properly stated claim of intentional infliction of emotional distress, Campos v Oldsmobile Div,
Gen Motors Corp, 71 Mich. App. 23, 26; 246 NW2d 352 (1976), which plaintiffs alleged in part
under Count IV and again under Count VI. For each of those claims, plaintiffs alleged harms that
were distinct from the harm caused to their reputations, such as fear, anxiety, and emotional
distress. As such, plaintiffs’ claims are distinguishable from the claim at issue in Meyer v Hubbell,
117 Mich. App. 699, 704-705; 324 NW2d 139 (1982).
9
Theresa argues that this Court must conclude that the trial court erred because plaintiffs conceded
as much by failing to oppose her argument that the trial court erred. As the appellant, Theresa has
the obligation to demonstrate that the trial court erred when it denied her motion. Beason v Beason,
435 Mich. 791, 804; 460 NW2d 207 (1990) (stating that “the burden is on the appellant to persuade
the reviewing court that a mistake has been committed, failing which the appellate court may not
overturn the trial court’s findings.”). And plaintiffs’ decision not to offer an argument in support
of the trial court’s decision does not bind us to a conclusion that the trial court erred. See Int’l
Text-Book Co v Marvin, 166 Mich. 660, 666; 132 N.W. 437 (1911) (“No argument is made in the
brief for the appellee to support the rulings admitting testimony, the charge of the court, or the
theory according to which the issue of fact was left with the jury. Nevertheless, we must sustain
the judgment if no error occurred at the trial.”).
10
Theresa spends a significant amount of time discussing continuing wrongs. However, the
continuing wrongs doctrine has no application to claims involving discrete and separate tortious
acts or omissions. For example, this Court has held that a plaintiff can allege a malpractice claim
premised on discrete acts or omissions that constitute separate breaches of the duty owed, even
when the acts or omissions lead to a single injury, and the claims will each have independent
accrual dates. See Kincaid v Cardwell, 300 Mich. App. 513, 525; 834 NW2d 122 (2013). Similarly,
as already stated, each defamatory statement can support an independent cause of action with its
own accrual date. See Grist, 1 Mich. App. at 85.
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exempt from disclosure except for law enforcement purposes. See MCL 28.730(1). As a means
to enforce this confidentiality, the Legislature made it a misdemeanor to publish “nonpublic
information concerning the registration or report,” MCL 28.730(4), and provided an individual
whose registration or report is revealed in violation of the SORA with a cause of action against the
person who unlawfully revealed the registration or report. See MCL 28.730(5).
Although registration information was originally confidential, the Legislature has
subsequently required the department to maintain a public Internet website containing listed
information on each individual registered under the act. See MCL 28.728(2). It also provides that
the cause of action provided under MCL 28.730(5) did not apply to information disclosed from
the public Internet website required under MCL 28.728(2). MCL 28.730(6).
Theresa argues that the trial court should have dismissed Count I, which alleged a claim
under MCL 28.730(5), because her publications included information from the Internet website
required under MCL 28.728(2), which exempted her from liability under MCL 28.728(6).
However, Theresa’s argument is premised on the notion that plaintiffs’ claims are based solely on
her publication of information taken from the SORA website. Although plaintiffs did allege that
Theresa published information that she took from the SORA website, they repeatedly stated that
their claim arose from Theresa’s republication of the information from the website along with
details that were not part of the website. Specifically, they alleged that Theresa publicly stated
that McNabb was a pedophile who abused a corpse, and that Redmond and the funeral home
facilitated his acts. They also alleged that she publicly accused Redmond of putting children at
risk, that she said McNabb currently “hunts at fast food places, video gaming stores, and funeral
homes,” and that his preferred victims were teenaged boys. These allegations involve
information—such as the claim that McNabb is presently hunting teenaged boys at a funeral
home—that is not provided by the department on the website. See MCL 28.728(2) (listing the
information that is to be made public on the website) and MCL 28.728(3) (prohibiting certain
information from being on the website). Plaintiffs also alleged that Theresa improperly posted the
information from the SORA website on Facebook. To the extent that the alleged postings included
nonpublic information, plaintiffs could assert a claim under MCL 28.730(5). Therefore, the trial
court did not err when it denied Theresa’s motion for summary disposition of Count I because her
statements were not exclusively protected by MCL 28.730(6).
B. PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY DISPOSITION
Plaintiffs moved for partial summary disposition in their favor under MCR 2.116(C)(10).
A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the
complaint. Maiden v Rozwood, 461 Mich. 109, 120; 597 NW2d 817 (1999). The movant must
identify the issues as to which it believes that there is no genuine issue of fact, and support the
motion with evidence—affidavits, depositions, admissions, or other documents—that, if left
unrebutted, would demonstrate that the moving party is entitled to judgment as a matter of law. Id.
citing MCR 2.116(G)(5) and MCR 2.116(C)(10). If the moving party properly supports his or her
motion, the burden shifts to the nonmoving party to establish that a genuine issue of material fact
exists. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich. App. 362, 370; 775
NW2d 618 (2009). “A genuine issue of material fact exists when the record, giving the benefit of
reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might
differ.” West v Gen Motors Corp, 469 Mich. 177, 183; 665 NW2d 468 (2003).
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This Court reviews de novo (1) a trial court’s decision on a motion for summary
disposition, Barnard Mfg, 285 Mich. App. at 369, (2) whether the trial court properly applied the
constitutional standard for defamation to the undisputed facts, Smith v Anonymous Joint
Enterprise, 487 Mich. 102, 111-112; 793 NW2d 533 (2010), (3) whether the trial court properly
interpreted and applied the common law, Roberts v Salmi, 308 Mich. App. 605, 612; 866 NW2d
460 (2014), and (4) whether it properly interpreted and applied any relevant statutes, Pransky v
Falcon Group, Inc, 311 Mich. App. 164, 173; 874 NW2d 367 (2015).
1. THE UNDERLYING CLAIM
In their motion for partial summary disposition, plaintiffs argued that there were no
questions of material fact as to whether they were entitled to a permanent injunction. As discussed
above, an injunction is a remedy, not a cause of action. See Terlecki, 278 Mich. App. at 663. To
be sure, Michigan courts have recognized that a person may in certain circumstances go to a court
sitting in equity and establish a right to have another enjoined from a threatened tort. See Adkins
v Thomas Solvent Co, 440 Mich. 293, 315; 487 NW2d 715 (1992); see also Nat’l Concessions, Inc
v Nat’l Circus Corps, 347 Mich. 335, 339; 79 NW2d 910 (1956) (stating that a court sitting in
equity could consider a claim asking for an injunction involving a potential breach of contract
when a judgment would be worthless because the defendant was uncollectible). Nevertheless,
“[i]n both law and equity, however, there must be a cognizable claim of a substantive interest
invaded or threatened.” Adkins, 440 Mich. at 315. Hence, to obtain injunctive relief, plaintiffs first
had to establish success on the merits of at least one claim that could support injunctive relief. The
underlying claim that the trial court based the injunction upon was defamation.
There was no jury trial, because the trial court granted summary disposition on the
defamation claim, determining that plaintiffs established their claim for defamation as a matter of
law. If the trial court was correct, then on that basis it could enter an injunction prohibiting Theresa
from repeating the statements adjudicated to be false and defamatory.
As the moving parties, plaintiffs had the burden to show that there was no material factual
dispute concerning the elements of their defamation claim, i.e., that Theresa (1) made a false and
defamatory statement about plaintiffs, (2) that she was not privileged to make and communicated
it to a third party, (3) that she published the communication with fault amounting to, at the least,
negligence, and (4) that the statement was actionable without regard to special harm (defamation
per se), or that plaintiffs suffered special harm. See Smith, 487 Mich. at 113.11
11
Theresa argues that plaintiffs must prove actual malice because plaintiffs are limited-purpose
public figures. A limited-purpose public figure is a person who has thrust himself or herself to the
forefront of a particular public controversy in order to influence the resolution of the issues
involved. Hayes v Booth Newspapers, Inc, 97 Mich. App. 758, 774; 295 NW2d 858 (1980).
Nothing in the record suggests that plaintiffs voluntarily thrust themselves into any public
controversy. Merely holding a state professional license does not transform the license holder into
a public figure with regard to any issue involving that profession. New Franklin Enterprises v
Sabo, 192 Mich. App. 219, 222; 480 NW2d 326 (1991) (stating that a private person does not
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In their amended complaint and their motion for summary disposition, plaintiffs identified
several statements by Theresa that they claimed were false and defamatory. Specifically, in the
trial court’s decision it cited to plaintiffs’ evidence that (1) on April 22, 2017, Theresa stated that
she wanted “to spread the word about what happened to Charlie after he left us two summers ago,”
(2) on July 24, 2017, Theresa posted on Facebook that her son’s “cousins and all his friends were
exposed to this pervert at Charlie’s funeral,” and that “he didn’t sodomize his customers’ children?
Some of your kids were at Charlie’s funeral. How does that make you feel?”, (3) on that same
date she stated that McNabb “hunts at fast food places, video and gaming stores, and funeral
homes”, and (4) on August 13, 2017, Wolf published on the Internet that McNabb “targets young
teenage boys who like video games and nice shirts.” Plaintiffs also set forth specific allegations
and evidence about the frequency of these and other statements, Theresa continually contacting
the funeral home and police agencies, and other allegedly harassing behavior.
“A communication is defamatory if it tends so to harm the reputation of another as to lower
him in the estimation of the community or to deter third persons from associating or dealing with
him.” Smith, 487 Mich. at 113 (quotation marks and citation omitted). Upon review of the evidence
submitted to the trial court, we conclude that as to the four statements listed above, no reasonable
juror could conclude other than that the statements Theresa and Wolf posted to social media were
defamatory. As noted above, Theresa asserted that McNabb “hunts” and “targets” young boys for
sexual purposes at fast food places, videogame stores, and funeral homes, with the statements
written as if he was currently doing so. Theresa also wrote that McNabb sodomized customers of
Redmond Funeral Homes, and that young boys at Charlie’s funeral and visitation were “exposed”
to, and possibly sodomized by, McNabb. Finally, she also indicated that Redmond and Redmond
Funeral Home were lying about McNabb, trying to suppress her efforts to get the warning out, and
were covering up for a pedophile.
Contrary to Theresa’s contention, she did not couch these accusations as opinions and, even
if she had, they clearly implied an assertion of fact that could be proven false. See Ghanam v
Does, 303 Mich. App. 522, 545; 845 NW2d 128 (2014). A reasonable fact-finder reading these
statements could only conclude that Theresa was asserting that she had knowledge that McNabb
was actively and presently hunting for teenaged boys in order to commit criminal sexual conduct,
and that he was doing so at Redmond’s funeral home with Redmond’s knowledge and support.
See Smith, 487 Mich. at 128 (stating that the dispositive question was whether a reasonable fact-
finder could find that the statement implied a defamatory meaning). Accusations of criminal
sexual conduct are heinous and amount to defamation per se. Lakin v Rund, 318 Mich. App. 127,
138; 896 NW2d 76 (2016) (stating that an accusation of a crime involving moral turpitude or an
infamous punishment are defamatory per se). No reasonable fact-finder could conclude other than
that these statements would so harm plaintiffs’ reputation so as to lower them in the estimation of
become a public figure merely by becoming involved in or associated with matters of public
concern). On this record, plaintiffs are private persons and, for that reason, need only prove that
Theresa acted negligently when she made the statements at issue. Deitz v Wometco West Mich TV,
160 Mich. App. 367, 375; 407 NW2d 649 (1987).
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the community, and deter third persons from associating or dealing with them. Smith, 487 Mich.
at 128.12
On appeal, Theresa argues that her statements that McNabb is a pedophile are true because
he has a 2006 conviction of criminal sexual conduct involving a 15-year-old boy. She also asserts,
as we noted when discussing plaintiffs’ SORA claim, that everything she stated came from police
reports or the website maintained under the SORA, and is therefore true. However, all of the
documents she cites describe acts that occurred more than 10 years earlier—none of the reports or
documents she cites involve present activity. As already noted, Theresa’s social media posts were
not confined to relating details from past events; she explicitly and implicitly asserted that she had
actual knowledge that McNabb had continued to violate the law consistent with her belief that sex
offenders always reoffend, and that Redmond was facilitating his activities. Instead, each of the
statements at issue relate to present time, and were assertions of supposed fact about plaintiffs’
current activities. For that reason, evidence as to what is contained on the registry or in police
reports is not evidence creating a material issue of fact that her statements were true.13
We recognize, as did the trial court, that not all accusations of criminal conduct amount to
an assertion of fact. Some statements may amount to rhetorical hyperbole, imaginative
expressions, or exaggerations designed to be offensive. See Ghanam, 303 Mich. App. at 545-546.
Such statements must be examined in context to determine whether a reasonable reader might
understand that the writer used the terms to express strong disapproval rather than an accusation
of actual criminal activity. Id. at 546-547. As this Court has recognized, ordinary consumers of
social media generally understand that statements made in online fora are frequently not intended
as assertions of fact even when framed as assertions of fact. Id.
Except for the statements noted above, the remainder of Theresa’s statements were strongly
worded, and suggested that McNabb posed an imminent danger to children. The nature of the
remarks might justify a reasonable fact-finder in finding that Theresa’s remarks were defamatory,
12
Contrary to Theresa’s argument, a speaker’s motive and intent in making a statement are not
elements of common-law defamation; rather, plaintiffs need only show that Theresa negligently
made a false and defamatory statement. See Mich Microtech, Inc v Federated Publications, Inc,
187 Mich. App. 178, 183; 466 NW2d 717 (1991) (stating that intent in not an element of
defamation); Deitz, 160 Mich. App. at 375 (stating that the common-law definition of malice
involving ill will or spite no longer applies to defamation claims—the plaintiff need only prove
ordinary negligence).
13
In MCL 28.721a, the Legislature stated its determination that “a person who has been convicted
of committing an offense covered by this act poses a potential serious menace and danger to the
health, safety, morals, and welfare of the people, and particularly the children, of this state.” This
legislative policy does not provide private citizens with the unfettered right to assume that all
convicted sex offenders were in fact reoffending and, on the basis of that assumption, publicize
false accusations of criminal conduct. The same is true of the court decisions that Theresa cites,
as they do not stand for the proposition that private persons may make false and defamatory
statements about a sex offender’s current conduct on the basis of the sex offender’s past conduct.
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or that Theresa was merely expressing her strong belief that a convicted sex offender should not
be employed at a funeral home. In other words, a reasonable fact-finder could find that these
remaining statements, which were undoubtedly offensive to ordinary sensibilities, were
nevertheless hyperbolic, or amounted to exaggerated commentary. Consequently, on those
statements, there was a question of material fact as to whether the statements were defamatory,
which precluded the trial court from granting plaintiffs’ motion for summary disposition in its
entirety. See Ireland v Edwards, 230 Mich. App. 607, 619-620; 584 NW2d 632 (1998) (stating that
a trial court may determine that a statement is not capable of defamatory meaning as a matter of
law, but may not grant summary disposition on that basis if the statement is capable of a
defamatory meaning). In the end, however, it matters little since the four statements analyzed
above were defamatory as a matter of law, and are sufficient to support a more narrowly tailored
injunction.
2. AUTHORITY TO ENJOIN SPEECH
The First Amendment to the United States Constitution prohibits Congress—and now the
States —from “abridging the freedom of speech.” US Const, Am I. To protect this venerable
14
right, state and federal courts have held that prior restraints on constitutionally protected speech
are prohibited. In TM v MZ, 326 Mich. App. 227, 237-238; 926 NW2d 900 (2018), our Court
recently articulated the applicable First Amendment rules as follows:
“The First Amendment, applicable to the States through the Fourteenth
Amendment, provides that ‘Congress shall make no law . . . abridging the freedom
of speech.’ ” Virginia v Black, 538 U.S. 343, 358; 123 S. Ct. 1536; 155 L. Ed. 2d 535
(2003), quoting US Const, Am I. “The United States Supreme Court has held that
the federal constitution protects speech over the Internet to the same extent as
speech over other media.” Thomas M Cooley Law Sch v Doe 1, 300 Mich. App. 245,
256, 833 NW2d 331 (2013), citing Reno v American Civil Liberties Union, 521 U.S.
844, 870; 117 S. Ct. 2329; 138 L. Ed. 2d 874 (1997). However, the “right to speak
freely is not absolute.” Cooley, 300 Mich. App. at 256, [] citing Chaplinsky v New
Hampshire, 315 U.S. 568, 571; 62 S. Ct. 766; 86 L. Ed. 1031 (1942). For example,
“[l]ibelous utterances [are] not . . . within the area of constitutionally protected
speech,” and a state may therefore enact laws punishing them. Beauharnais v
Illinois, 343 U.S. 250, 266; 72 S. Ct. 725; 96 L. Ed. 919 (1952).
Prohibitions relating to content, however, are few, because of the First
Amendment’s “bedrock principle” that an idea cannot be prohibited “simply
because society finds the idea itself offensive or disagreeable.” Texas v Johnson,
491 U.S. 397, 414; 109 S. Ct. 2533; 105 L. Ed. 2d 342 (1989). “The government may
not regulate [speech] based on hostility—or favoritism—towards the underlying
message expressed.” RAV v City of Saint Paul, Minnesota, 505 U.S. 377, 386; 112
S. Ct. 2538; 120 L. Ed. 2d 305 (1992). “The First Amendment permits restrictions
upon the content of speech in a few limited areas, which are of such slight social
14
The freedom of speech guarantee was made applicable to the states by the Supreme Court in
Gitlow v New York, 268 U.S. 652, 666; 45 S. Ct. 625; 69 L. Ed. 1138 (1925).
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value as a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.” Black, 538 U.S. at 358-
359 (quotation marks and citation omitted). Thus, the First Amendment does not
protect obscenity or defamation, within certain limits. RAV, 505 U.S. at 383[.] “[A]
State may punish those words which by their very utterance inflict injury or tend to
incite an immediate breach of the peace,” including “fighting words,” “inciting or
producing imminent lawless action,” and “true threat[s].” Black, 538 U.S. at
359 (quotation marks and citation omitted).
As the TM Court explained, there is a modern trend among some courts that recognize the
ability of trial courts to enjoin specific speech that has already been determined by a finder of fact
to be defamatory. TM, 326 Mich. App. at 245-246, and cases cited therein. See, also, McCarthy v
Fuller, 810 F3d 456, 461-462 (CA 7, 2015). 15 Other courts remain steadfast that no exception can
be applied consistent with the long-standing prohibition on prior restraints.16 See, e.g., McCarthy,
810 F3d at 464 (SYKES, J., concurring); Kinney v Barnes, 443 S.W.3d 87, 92-99 (Tex, 2014). Here,
however, because of the broad language contained in the injunctions, whether we apply the general
rule prohibiting prior restraints, or the modern trend recognizing a narrow exception to that general
prohibition, both injunctions as written violate defendants’ First Amendment rights to free speech.
This is so because both injunctions cover certain speech that would be protected by the
First Amendment. For example, Theresa could speak about whether certain criminal sexual
conduct convicts should be working in funeral homes by using McNabb as an example, but
relaying only the information contained in the public domain, yet be brought into court for potential
contempt hearings. Additionally, Theresa could state other nondefamatory commentary about
Redmond and McNabb, or engage in other undefined “harassing” behavior, and be subject to
censure by the court. In other words, the injunction potentially covers much more than the specific
four statements found to be defamatory, and therefore does not survive constitutional scrutiny
under the general antiprior restraint law under the First Amendment, or under the narrow exception
recognized by many courts.17
3. INCOMPLETE DISCOVERY
15
Most of the cases adopting the modern trend are based upon a conclusion after trial (bench or
jury) that the statements were defamatory. Some courts have said in dicta that even a directed
verdict might not suffice, see Kramer v Thompson, 947 F2d 666, 679 (CA 3, 1991), while other
courts have entered permanent injunctions based upon the grant of summary judgment on a
defamation claim when there was no genuine issue of material fact for the jury to decide. See,
e.g., Oakley, Inc v McWilliams, 890 F Supp 2d 1240, 1242-1243 (CD Ca, 2012), and American
Univ of Antigua College of Medicine v Woodward, 837 F Supp 2d 686, 700-701 (ED Mich, 2011).
Neither party has raised this line of cases.
16
“Cases from other jurisdictions are not binding precedent, but we may consider them to the
extent this Court finds their legal reasoning persuasive.” Auto Owners Ins Co v Seils, 310 Mich
App 132, 147 n 5; 871 NW2d 530 (2015).
17
Consequently, like the TM Court, we have no reason to determine whether the modern line of
reasoning should be adopted in Michigan. TM, 326 Mich. App. at 245-246.
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Theresa also devotes a significant portion of her brief on appeal discussing McNabb’s
refusal to answer certain questions at his deposition. She complains that he refused to answer the
questions without asserting a valid privilege, and argues that discovery was not sufficiently
complete to permit a motion for summary disposition because McNabb failed to answer the
questions. She also maintains that his failure to answer the questions should give rise to adverse
inferences, which created a question of fact as to the truth of Theresa’s statements.
Generally, a decision to grant summary disposition is premature if discovery has not been
completed. See Liparoto Constr, Inc v Gen Shale Brick, Inc, 284 Mich. App. 25, 33; 772 NW2d
801 (2009). However, summary disposition may still be appropriate before the conclusion of
discovery if there is no fair likelihood that further discovery would yield support for the nonmoving
party. Id.
In pursuing this argument, Theresa does not argue that further discovery beyond deposing
McNabb would have a fair likelihood of yielding support for her position. Instead, she argues that
discovery was incomplete because McNabb refused to answer questions about his misconduct
from more than a decade before the events at issue. Notably, Theresa does not address the fact
that the trial court ruled against her on this issue, and denied her motion to compel McNabb to
testify.
At McNabb’s deposition, Theresa’s lawyer repeatedly asked McNabb about sexual
misconduct involving the minor or other minors discussed in police reports from more than a
decade earlier. For example, he asked McNabb whether he disposed of evidence before police
officers interrogated him. He also asked McNabb whether he “sodomized” the “customers at
GamePlaza,” which was a videogame store identified by officers as a place where McNabb hung
out before his conviction. And Theresa’s lawyer asked McNabb questions about behaviors that
could be considered grooming that were identified in the police reports.
Discovery generally applies only to matters that are “relevant to any party’s claims or
defenses and proportional to the needs of the case[.]” MCR 2.302(B)(1). Even when relevant to
the subject matter involved, the trial court has the authority to provide that “certain matters not be
inquired into,” MCR 2.302(C)(4) on the ground that the proposed limitation was necessary to
“protect a party or person from annoyance, embarrassment, oppression, or undue burden or
expense,” MCR 2.302(C).
At the hearing on Theresa’s motion to compel discovery, the trial court specifically found
that the questions about what happened in 2005 were not relevant to determining whether
Theresa’s statements about McNabb’s activities in 2015 and 2016 were true. Theresa has not
challenged the trial court’s exercise of its discretion to bar Theresa from inquiring about the details
of the investigation into McNabb’s sexual misconduct in 2005. By failing to address the trial
court’s actual decision on her motion to compel, Theresa abandoned any assertion that the trial
court erred when it precluded her from obtaining answers to those questions. See Derderian v
Genesys Health Care Sys, 263 Mich. App. 364, 381; 689 NW2d 145 (2004) (stating that this Court
need not consider granting relief where the appellant failed to dispute the actual basis of the trial
court’s ruling). Consequently, because the trial court determined that she could not ask those
questions, discovery was in fact complete with regard to McNabb’s testimony, and Theresa has
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not identified any other basis for concluding that discovery was not sufficiently complete to permit
summary disposition.
IV. CONCLUSION
The trial court’s order granting plaintiff’s motion for partial summary disposition is
affirmed in part, and denied in part. The permanent injunctions are vacated, and the matter is
remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Patrick M. Meter
/s/ Kirsten Frank Kelly
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