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### STATE OF MICHIGAN

COURT OF APPEALS

FRANK LAWRENCE,

Plaintiff-Appellant, FOR PUBLICATION January 26, 2016 9:05 a.m.

v No. 322041 Macomb Circuit Court CAREN M. BURDI and EARL, EARL & ROSE PLLC, LC No. 2014-001417-CZ

Defendant-Appellees.

Before: M ETER , P.J., and W ILDER and R ONAYNE K RAUSE , JJ.

P ER C URIAM

. Plaintiff appeals as of right from a Macomb County Circuit Cou rt order granting defendants’ motion for summary disposition after the court conc luded that the statements made by defendant Burdi (hereinafter defendant) were privileged, and that they could not be the basis of plaintiff’s claims, and therefore plaintiff failed to state a claim that was actionable. We affirm in part and reverse in part.

I. FACTUAL BACKGROUND

Plaintiff’s claims of abuse of process and defamation arose fr om an underlying property dispute being litigated before Judge Jennifer Faunce (notably t he same judge who presided over this case) in the Macomb Circuit Court, Froling v Pelican Prop
, LLC , Docket No. 2013-003083- CZ. That case concerned a pres criptive easement claim brought by William P. Froling, plaintiff’s employer, against Pelican Property, who was represe nted in the matter by defendant. Plaintiff, who passed the Michigan Bar Examination in 2001, butwas unable to pass character and fitness and be admitted to the practice of law, acts as a l iaison between Mr. Froling’s various corporate entities and the law firms that represent those entit ies. The easement dispute centered on whether a restaurant business established on Mr. Froling’s p roperty was entitled to use property owned by Pelican Property for parking and trash bin st orage. A main contention in that case was whether the restaurant’s use of the property had been continuous over the past 15 years
or not.

After one of Pelican’s main witnesses—District Court Judge Mic hael Chupa—stated in an affidavit that the restaurant had been closed for “a substan tial period of time, sometime between April 2004 and November of 2007,” the case was publiciz ed in the local news, which quoted plaintiff and identified him as Froling’s “spokesman”. Specifically, regarding plaintiff,-2- the article said, “ ‘We can show [continuous use] through conti nuous unbroken leases. We can show it through health inspection reports, through utility reco rds and eyewitness accounts of owners, of employees and most importantly, customers,’ said Fra nk Lawrence, spokesman for Titan Construction” (one of Froling’s companies).

Shortly after the article was published, and after the closure of discovery in the Froling case, defendant submitted “Requests to Admit in the Froling v. Pelican Case,” which asked for six admissions from Mr. Froling, including:

4. Please admit that Frank Lawrence has been denied the opportunity to take the attorney bar exam for the State of Michi gan as he cannot pass character and fitness.

5. Please admit that Frank Law rence has a felony drug convicti on from 1996.

6. Please admit that Frank Law rence has another drug convictio n prior to 1996.

When defendant refused to withdraw the filing, plaintiff filedthis suit, claiming abuse of process and defamation. Plaintiff asserted that the statements were not true and were “unrelated in any way to the litigation and were intended to maliciously d efame a non-party.” Also included in plaintiff’s complaint, are allegations that in Febr uary 2014, while they waited for a facilitation proceeding in the Macomb County courthouse, defend ant approached plaintiff and Froling and “questioned them in a disrespectful and hostile manner,” before telling Froling “that he should be careful with whom he a ssociates,” in reference to plaintiff.

Plaintiff first filed a “Motion to Strike and Expunge,” asking that the alleged defamatory requests to admit be stricken from the record and expunged from the court’s computer system. Defendant’s response to the motion argued that the trial court had no authority to strike discovery requests filed in a separate case. Plaintiff respond ed by withdrawing his motion to strike and replacing it with a motion to seal. He asserted tha t the statements, as part of the public record, were harmful to his reputation and were false in that h e had no drug convictions and had in fact passed the Michigan bar examination. Plaintiff also fi led a separate motion for sanctions under MCR 2.114(E), asserting that defendant had violated MCR 2 .114(D) by filing a document that she knew had no factual basi s, for the purpose of harassin g and embarrassing plaintiff. In addition, he asked the court to seal the Board of Law Examiners opinion from 2006. Defendant then moved for summary disposition under MCR 2.116(C)(8) (failu re to state a claim) and (C)(10) (no genuine issue of material fact).

The trial court first held the hearing on the motions to seal. Plaintiff argued that the statements, being in the form of requests to admit, appeared to the public as though they were statements of fact supported by evidence, and it was these untr ue and misleading statements he wished to be sealed. Plaintiff’s counsel also asserted that pl aintiff’s character was irrelevant to the property dispute. To this, the trial court responded, “[H] is name was thrown around an awful lot in those hearings . . . So, I tend to think he’s a relevan t party as far as a witness goes.” When counsel asserted plaintiff was not a property manager but merel y worked with Froling’s lawyers in property disputes, the court asked, “Does he work with that particular property? His name came up an awful lot. To make me think that he’s completely ir relevant to that lawsuit doesn’t strike me as genuine.” Counsel replied that plaintiff may not be “totally irrelevant to the lawsuit,-3- because he’s helping the lawyers work in the lawsuit,” but that “his history with the State Bar, has nothing to do with the Froling lawsuit.” Ultimately, regar ding the statement about the bar examination and the Board of Law Examiners opinion, the trial c ourt found that “there are some legitimate question[s] regarding that, and . . . I’m not going to order that sealed.” The two statements about drug convictions , however, the court ordered s ealed. Subsequently, sanctions were not ordered; the entirety of the court’s reasoning on thatissue being: “I’m not issuing sanctions. I don’t think it rose to the level of sanctions.”

The trial court heard the motion for summary disposition a fewweeks later. Defendant argued that the statements made in the requests to admit were m ade “within the context of the litigation” and so “the absolute immunity under the judicial pr oceedings privilege applies.” Also, that the statement made in the courthouse hallway was onl y an opinion and, therefore, could not be the basis for a defamation claim. Defendant asserted that “the courts have consistently held that defama tion cannot be an ulterior motive for an abuse of process” claim, and therefore, plaintiff’s claims failed. Plaintiff responded by arguing that because plaintiff was not a party to the Frolin g case, his claim was not on equal footing with the caselaw def endant cited for the above propositions. Defendant replied that the t rial court already not ed that plaintiff was a witness and as a result, his character and credibility we re relevant to the case and therefore protected by privilege.

The court noted that it had “let a lot of things come in after discovery was closed” and stated, “I think he [plaintiff] was always a potential witness. ” Regarding the statements about drug convictions, the court said “there wasn’t anything to supp ort the criminal, the alleged criminal allegation,” but the c ourt nevertheless reasoned, “[T] hat is part of the discovery process. I do believe that it is privileged.” In addition, the court co ncluded that the statement made in the courthouse hallway “is opinion and you cannot show any ulteriormotive.” 1 For those reasons, the trial court granted the defendant’s motion for summary disp osition, stating that plaintiff “failed to state a claim for wh ich could [sic] be actionable.” Plaintiff appealed.

II. MOTION FOR SUMMARY DISPOSITION

Plaintiff first argues the trial court erred in granting defen dant’s motion for summary disposition in regards to his cl aims for abuse of process and d efamation. An appellate court “review[s] de novo a decision on a motion for summary dispositi on

. ” Greenville Lafayette
, LLC v Elgin State Bank , 296 Mich App 284, 286; 818 NW2d 460 (2012). It must be noted that the trial court’s ruling in favor o f summary disposition does not e xpressly state whether the motion was granted under MCR 2.116(C)(8) or MCR 2.116(C)(10). Based upon the trial judge’s

1 It appears the trial court mist akenly combined aspects of defa mation (opinions) with aspects of abuse of process (ulterior motive). To be clear, our Supreme C ourt said in Smith v Anonymous Joint Enterprise , 487 Mich 102, 128; 793 NW2d 533 (2010), that “a statement of opinion is not automatically shielded from an action for defamation because ex pressions of opinion may often imply an assertion of objective fact . . . [A] statement of op inion that can be proven to be false may be defamatory because it may harm the subject’s reputation or deter others from associating with the subject.” (quotation marks and citations omitted.)-4- comment, “I do believe that it is privileged and, therefore, I think on that portion you failed to state a claim for which [sic] c ould be actionable,” and its sim ilarity to the language of MCR 2.116(C)(8), this court presumes that the motion for summary di sposition was granted for failure “to state a claim on which relief can be granted,” under MCR 2. 116(C)(8). Accordingly,

[a] motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. This Court revi ews . . . a motion under MCR 2.116(C)(8) to determine whether the claim is so clea rly unenforceable as a matter of law that no factual development co uld establish the claim and justify recovery. All factual allegations supportingthe claim, and any reasonable inference or conclusi ons that can be drawn from the facts, are accepted as true. [ Averill v Dauterman , 284 Mich App 18, 21; 772 NW2d 797 (2009), quoting Smith v Stolberg , 231 Mich App 256, 258; 586 NW2d 103 (1998)]

A. ABUSE OF PROCESS CLAIM

“Abuse of process is the wrongf ul use of the process of a cour t. This action for the abuse of process lies for the imprope r use of process after it has be en issued, not for maliciously causing it to issue.” Spear v Pendill , 164 Mich 620, 623; 130 NW 343 (1 911) (quotation marks omitted). “To recover upon a theory of abuse of process, a pla intiff must plead and prove (1) an ulterior purpose and (2) an act in the use of process which is improper in the regular prosecution of the proceeding.” Friedman v Dozorc , 412 Mich 1, 30; 312 NW2d 585 (1981). Expanding on each of the elements, the Friedman court went on to explain that th e act must be something more than just initiation of a lawsu it and the ulterior purpose has to be something other than settling a suit. Id. at 31. Justice Cooley, in his t reatise on torts, stated “One way in which process is sometimes abused, is by making use of it to accomplish not the ostensible purpose for which it is taken out, but some other purpose for which it is an illegitima te and unlawful means.” Cooley, Treatise on the Law of Torts, or t he Wrongs which Arise Indepen dently of Contract (3d ed), p 356.

Turning now to the request s to admit filed in the Froling v Pelican case, this device is governed specifically by MCR 2.312 and more generally by MCR 2. 302. MCR 2.302(B)(1) regarding the scope of discover y, provides that in general:

Parties may obtain discovery regarding any matter, not privileg ed, which is relevant to the subject matter involved in the pending action , whether it relates to the claim or defense of the party seeking discovery or to the c laim or defense of another party, including the exi stence, descrip tion, nature, cu stody, condition, and location of books, documents, or other tangible things, or elec tronically stored information and the identity and location of persons having kno wledge of a discoverable matter. It is not ground for objection that the i nformation sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. [E mphasis added.]

MCR 2.312(A) states:-5- Within the time for completion of discovery, a party may serve on another party a written request for the admission of the truth of a matter with in the scope of MCR 2.302(B) stated in the request tha t relates to statements or op inions of fact or the application of law to fact . . .

There is no doubt that filing requests to admit is an act of p rocess, the purpose of which was given by our Supreme Court in Radtke v Miller
, Canfield
, Paddock & Stone , 453 Mich 413, 419-420; 551 NW2d 698 (1996):

MCR 2.312 is modeled after FR Civ P 36, and serves two vital pu rposes:

Admissions are sought, first to facilitate proof with respect t o issues that cannot be eliminated from the case, and secondly, t o narrow the issues by eliminating those that can be. [Advisory Committee note of 1970 to amend rule 36.]

By encouraging admissions . . . t he goal of the rule . . . [is] to expedite the pending action.

“[R]equests for admission are used to establish admission of f acts about which there is no real dispute.” 7 Moore’s Fede ral Practice (3d ed), § 36.02[1], p 36-5. Similarly, Michigan’s court rule has “a two-fold functi on: (1) to limit the areas of controversy and (2) to save time, energy and expense that would otherw ise be required for prepari ng proof and submitting evidence on matters properly s ubject to admission.” 2 Longhofe r, Michigan Court Rules Practice (6th ed), Rule 2.312, § 2312.3, p 429.

Plaintiff contends that defenda nt’s filing of the request to a dmit did not serve any legitimate purpose stated above, but instead claims in his comp laint that it was filed “with the intent to cause harm to [the pl aintiff]” by “defam[ing] and harm[ing] a non-party to the litigation.” With these filings being made to plaintiff’s empl oyer, the intended purpose appears to be harm resulting from embarra ssment, mistrust by his employ er, and even possible termination of employment. The requests to admit in no way lim ited the areas of controversy or saved the parties time, ener gy and expense. In fact, the resul t has been quite the opposite—more time, energy and money has been s pent by all parties involved, arguing over an area that was never previously in controvers y, due directly to the request to admit being filed by defendant. Therefore, plaintiff successfull y stated a cause of action for abuse of process in his complaint and accordingly, summary disposition was improper.

B. DEFAMATION CLAIM

“A defamatory communication is one that tends to harm the repu tation of a person so as to lower him in the estimation of the community or deter others from associating or dealing with him.” American Transmission
, Inc v Channel 7 of Detroit
, Inc , 239 Mich App 695, 702; 609 NW2d 607 (2000).

The elements of a cause of action for defamation are (1) a fals e and defamatory statement concerning the plaintiff, (2) an unprivileged publica tion to a third party, (3) fault amounting at least to n egligence on the part of the p ublisher, and (4)-6- either actionability of the stat ement irrespective of special h arm (defamation per se) or the existence of special harm caused by the publication (defamation per quod). [ Id .]

It has long been established that “words charging the commissi on of a crime are defamatory per se, and hence, injury to the reputation of the p erson defamed is presumed to the extent that the failure to prove damages is not a ground for di smissal.” Burden v Elias Bros Big Boy Restaurants , 240 Mich App 723, 727-728; 613 NW2d 378 (2000). With the fir st element of a defamation claim being a false statement, it naturally follow s that a statement which is “substantially true” is a defen se to a charge of defamation by implication. See Hawkins v Mercy Health Servs , 230 Mich App 315, 332-333; 583 NW2d 725 (1998). Furthermore, defendants in defamation suits are not required to prove the statement is “li terally and absolutely accurate in every minute detail.” Rouch v Enquirer & News of Battle Creek Michigan , 440 Mich 238, 258; 487 NW2d 205 (1992).

The plaintiff’s complaint asserts that the basis for the defam ation claim is the requests to admit, as described above, that allege the plaintiff was disall owed from sitting for the bar exam in Michigan and that plaintiff had drug convictions, both prior to and in the year 1996. 2 There does not seem to be any dispute that the fifth and sixth statem ents, those about plaintiff’s alleged drug convictions, had no factual basi s and were entirely false. The fourth stateme nt, that plaintiff was denied the opportunity to ta ke the state bar examination be cause of character and fitness, is more capable of being considered substantially true. In determ ining if a statement is substantially true or not, the M ichigan Supreme Court has said:

a slight inaccuracy in one of its details will not prevent the defendant’s succeeding, providing the inaccuracy in no way alters the compl exion of the affair, and would have no differe nt effect on the reader than that which the literal truth would produce . . . Thus, the test looked to the sting o f the article to determine its effect on the reader; if the literal truth produc ed the same effect, minor differences were deemed immaterial. [ Rouch , 440 Mich at 259, quoting McAllister v Detroit Free Press Co , 85 Mich 453, 460-461; 48 NW 612 (1891).]

Here, Froling was fully aware t hat plaintiff was not a member of the state bar but also had been told that plaintiff had “multi-stated” the bar examination and his intellect was considered a valuable asset and reason he was hired. 3 The Board of Law Examiners’ opinion expressly stated that plaintiff “took the July 2001 Michigan bar examination and received a passing score.” 4 The inaccurate statement caused Froling to question if plaintiff ha s been fully truthful with him during his employment interview regarding the bar examination. Therefore, defendant’s

2 The statement made by defendant in the hallway to Mr. Froling, that he should be careful with whom he associates, in reference to the plaintiff, is nothing m ore than a platitude, which we find unactionable.

3 Affidavit of Carole Froling, pp 1-2.

4 In re Lawrence, MBLE Opinion, issued June 14, 2006, 1.-7- statement that plaintiff “has been denied the opportunity to ta ke the attorney bar exam for the State of Michigan as he cannot pass character and fitness” had a very different effect on the persons to whom it was published (Froling), than had it been a completely accurate statement. Because it specifically was false in the most relevant fact, it is difficult to characterize the statement as having “a slight inaccuracy in one of its details. ” The burden at trial is for the plaintiff to prove falsity. Although the statement about plain tiff’s character and fitness seems substantially true to the gener al reader, the effect it had on the persons to whom it was published, plaintiff’s employer, was very di fferent from the effect a pure ly accurate statement would have had.

Plaintiff further pleads that the statements regarding drug co nvictions are “defamation per se . . . and . . . do not requir e proof of damage to [plaintiff ’s] reputation.” Assertions that someone has prior drug convictions are certainly “accusations o f criminal activity [and] are considered ‘defamation per se’ under the law and so do not requ ire proof of damage to the plaintiff’s reputation.” Ghanam v Does , 303 Mich App 522, 545; 845 NW2d 128 (2014). Defendant’s main argument regar ding the defamation claim is the protection afforded by the judicial proceedings privilege. Plaintiff argues that the comm unications made by defendant were unprivileged because they “were not relevant, material or perti nent” to the underlying litigation. This issue is discussed next.

C. DEFENSE OF JUDICIAL P ROCEEDINGS PRIVILEGE

Defendants argued and the tria l court found persuasive in its granting of summary disposition, that the statement s made in the request to admit w ere made during the course of discovery, and thus fall under th e judicial proceedings privile ge, thereby barring plaintiff’s causes of action. We disagree.

“Statements made by judges, a ttorneys, and witnesses during th e course of judicial proceedings are absolutely privileged if they are relevant
, material
, or pertinent to the issue being tried.” Oesterle v Wallace , 272 Mich App 260, 264; 725 NW2d 470 (2006) (emphasis added). “The immunity extends t o every step in the proceeding and covers anything that may be said in relation to the matter at issue , including pleadings and affidavits.” Couch v Schultz , 193 Mich App 292, 295; 483 NW2d 684 (1992) (em phasis added). What a litigant considers to be pertinent or relevant is give n much freedom, and the privilege is liberally construed as a matter of public policy “so that participants in judicial proceedings may have relative freedom to express themselves withoutfear of reta liation.” Sanders v Leeson Air Conditioning Corp. , 362 Mich 692, 695; 108 NW2d 761 (1961) (inte rnal quotation marks an d citation omitted); see also Couch , 193 Mich App at 295. The statement need not be “strictly rel evant to any issue involved” in the litigation. 3 Restatement Torts, 2d, § 586, c mt c, p 248. All that is required is that the publication has “some reference” to the subject matter of the litigation; however, the privilege does not extend to ma tters that have “no connection w hatever with the litigation.” Id

. From this, it appears that the s tatements’ relev ance or pertine nce to the issue being tried—the existence of a prescriptive easem ent—is determinative of whethe r they were protected by the privilege.

In the record for this case, the re is absolutely no evidence t hat plaintiff’s character has any relevance or pertinence. When the trial court granted defe ndant’s motion, it agreed with-8- defendant that plaint iff was a potential witness for the reason that his name “came up a lot” in the easement case. But there is no e videntiary support for that co nclusion, and defendant notably has not attached copies of transc ripts from the easement case o r even the witness list she allegedly filed after submitting the requests to admit, which s upposedly named plaintiff as a witness. On the record before this Court, there is no evidence to support the assertion that plaintiff’s name “came up a lot ,” or that his pr ior struggles w ith the Board of Law Examiners and alleged history of drug convictions were relevant , pertinent, o r material to the Froling case or that they would shed any light on the easement issue. Indeed, the proceedings in the underlying Froling case support the conclusion tha t the admissions sought in the requests served no purpose in resolving that case; the court apparently neve r granted an a llowance to the late filing, the requests were never actually a nswered, defendant apparently nev er pursued answers, and neither plaintiff’s name nor his charac ter make even a passing appearan ce in the court’s final judgment.

Defendant, in her brief, relies considerably on the assertion that a presumption of relevancy of the statements aris es once it is est ablished that the statements were made during the course of a judicial proceeding. See Sanders , 362 Mich at 695-696. This, how ever, is a bit of a muddy area in defamation law. Sanders did not make that statement as a rule of law, but instead as a quote of the trial court’s language in that case, without ever expressly endorsing the concept. Id . In Michigan, the source of thi s “presumption” seems to be Hartung v Shaw , 130 Mich 177; 89 NW 701 (1902). In Hartung , the court stated:

If statements made in the course of judicial proceedings, in pl eadings, or in argument are relevant, material, or pertinent to the issue, the ir falsity or the malice of their author is not open to i nquiry. They are then absolute ly privileged . . .

Where a party shows in his declaration a publication presumptiv ely privileged, it is his duty, in order to recover, to prove that the words spoke n were not pertinent or relevant, and that they were not spoken bona fide. If it be necessary to prove this, it is equally ne cessary to allege it. [ Id . at 179-180 (citations omitted).]

In short, the “presumption” identified in Hartung is another way of saying that the burden is on the plaintiff to allege and then prove that statements ma de in the course of judicial proceedings, including pleadings and argument, have no relevanc e, pertinence, or materiality to the matter being litigated. Plaintiff sufficiently made that a llegation in his complaint.

Moreover, defendant’s pleadin gs fail to explain, and it is not facially apparent, how the character of a nonparty who is al so not a potential eyewitness has any “reference” to the subject matter of the easement litig ation. 3 Restatement Torts, 2d, § 586, cmt c, p 248. Taking as true plaintiff’s argument that defenda nt filed the requests to admit in retaliation for his public statements about the case, defe ndant’s conduct seems to turn up side down the public policy behind the privilege, that is , to permit partic ipants in judici al proceedings to be relatively free to express themselves wit hout fear of retaliation. Sanders , 362 Mich at 695.

III. DENIAL OF SANCTIONS

This Court reviews de novo whet her the trial court properly in terpreted and applied the relevant court rules to the facts, Brecht v Hendry, 297 Mich Ap p 732, 736; 825 NW2d 110-9- (2012), and “review[s] for clear error the trial court’s determ ination whether to impose sanctions under MCR 2.114.” Guerrero v Smith , 280 Mich App 647, 677; 761 NW2d 723 (2008). A finding is clearly erroneous if, after a review of the record, this Court is left with a definite and firm conviction that a mistake was made. Univ Rehab Alliance
, Inc v Farm Bureau Gen Ins Co of Mich , 279 Mich App 691, 693; 760 NW2d 574 (2008).

In regards to the trial court’s ability to levy sanctions agai nst an attorney, MCR 2.114(D) provides that:

The signature of an attorney or pa rty, whether or not the partyis represented by an attorney, constitutes a certification by the signer that

(1) he or she has read the document;

(2) to the best of his or her knowledge, information, and belie f formed after reasonable inquiry, the document is well grounded in fact and i s warranted by existing law or a good-faith argum ent for the extension, modifi cation, or reversal of existing law; and

(3) the document is not interpos ed for any improper purpose
, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. [Emphasis added.]

“If a document is signed in viol ation of this rule, the court . . . shall impose upon the person who signed it . . . an appropriate sanction . . . ” MCR 2.114(E).

The requests to admit asked Froling to “admit that Frank Lawre nce has been denied the opportunity to take the attorney ba r exam for the State of Mich igan as he cannot pass character and fitness.” Although the stateme nt itself is not entirely tr ue in the specifics, defendant contends that it indicates that plaintiff was denied bar admiss ion because of character and fitness, which is true. The Board of Law Examiners decision supports th is broader contention, even though it contradicts the specific assertion that plaintiff was not allowed to take the bar examination. From the broader point of view, the document was reasonably attached to defendant’s motion for the pur pose of providing support for her argument that plaintiff was denied bar admission. The trial c ourt’s conclusi on that the fi ling did not rise to the level of being harassment does not leave this C ourt with a definite and firm c onviction that a mistake was made, Univ Rehab Alliance
, Inc , 279 Mich App at 693. Therefore, we affirm the trial court’s denial of sanctions against defendant and her attorneys.-10- IV. CONCLUSION

Accordingly, we affirm the t rial court’s decision to deny plai ntiff’s motion for sanctions against defendant and their attorn eys. However, we conclude th at plaintiff sufficiently stated claims for abuse of process and defamation, upon which relief c an be granted. Therefore we reverse the trial court’s granting of summary disposition in fa vor of defendant.

/s/ Patrick M. Meter /s/ Kurtis T. Wilder /s/ Amy Ronayne Krause