Ava Cetera v. Lauren Mileto

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

AVA CETERA, JULIAN CETERA, and CETERA FOR PUBLICATION

PHOTOGRAPHY, LLC, July 28, 2022

9:05 a.m.

Plaintiffs-Appellants,

v No. 356868

Eaton Circuit Court

LAUREN MILETO, LC No. 2020-001040-NZ

Defendant-Appellee.

Before: MARKEY, P.J., and BOONSTRA and RIORDAN, JJ.

MARKEY, P.J.

Plaintiffs, Ava Cetera, Julian Cetera, and Cetera Photography, LLC (collectively “Cetera”),

appeal by right the trial court’s order granting summary disposition in favor of defendant, Lauren

Mileto, pursuant to MCR 2.116(C)(8) and (10) in this lawsuit involving claims of defamation per

se and false-light invasion of privacy (FLIOP). We affirm.

I. BACKGROUND

In the fall of 2019, Mileto was engaged to be married and was planning her wedding. The

wedding was initially scheduled to take place in October 2020, and Mileto booked Cetera in

November 2019 to be her wedding photographer. Mileto paid Cetera $2,120 for photography

services that were to be provided for the planned October 2020 nuptials. The parties agreed that

this payment was nonrefundable. During the summer of 2020, Mileto and her fiancé decided to

postpone their wedding until October 2021 in light of the ongoing COVID-19 pandemic. On July

29, 2020, Mileto sent an e-mail to various vendors, including Cetera, informing them that the

wedding had been postponed and inquiring whether they could provide their services on the new

date. In this e-mail, Mileto explained why she still desired their services:

I wanted to contact you all because you are what make our wedding a dream

wedding! We picked you as our vendors because you are the best at what you do,

the kindest people, and we couldn’t imagine not having you all at our celebration!

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Cetera informed Mileto that it was not available to photograph the wedding on the new

date. After some discussion of alternative dates that ultimately were not workable, the parties

agreed to terminate their agreement, and Cetera refunded $704 to Mileto. Shortly thereafter,

Mileto posted the following review of Cetera’s services both on Facebook and on a website called

“The Knot:”

I would not recommend Cetera Photography for any couples.

To begin, they don’t list their prices and instead just ask what you’re willing to pay

and then tailor their price around that, which doesn’t seem right to me.

Secondly, after booking them, I mentioned that I had a Pinterest board of poses that

I’d love to share with them and they completely freaked out. They were so offended

that I had looked at different photography ideas that we ended up having an hour

discussion about it before the issue was resolved and I said they didn’t have to take

my Pinterest into consideration.

Thirdly, they asked us to review them before they provided us any services. They

practically insisted we do it, continually asking if it was done yet. That is actually

why you see all their Facebook reviews that say people are excited to work with

them, but most haven’t yet.

Finally, we had to move our wedding because of COVID and that neither of our

grandparents were comfortable coming this year (which is very important to us that

they are there). When we expressed this to Ava and Julian [Cetera], they insisted

that we should have it anyway because “that’s what other people are doing.” When

we said it was a definite no and moving to next year, they offered us 2 slots they

had available next year (at very random times of the year) of which we couldn’t do

either. I am in grad school and can only do weekends we have breaks. When we

said we couldn’t do those weekends, they told us since we were being inflexible

and couldn’t work with their dates, we didn’t get any of our money back. Which

was over $2,000. They were actually so rude to me that they made me cry on the

phone.

Overall, they were very rude and unaccommodating. It doesn’t seem like they want

the best for you & want to get photos that YOU are happy with, they want what

works for them. I think there are plenty of other photographers that are more willing

to work with you for the same or a cheaper price. I would not recommend Cetera

photography to anyone.

Ten days later, Cetera’s attorney sent a letter to Mileto in which he requested that Mileto

withdraw the “defamatory posts.” Mileto edited the review to indicate that she had, in fact,

received a partial refund, but Mileto otherwise refused to withdraw the posts. Cetera then sued

Mileto, alleging counts of defamation per se, exemplary damages, and FLIOP. Subsequently, the

trial court granted Mileto’s motion for summary disposition under MCR 2.116(C)(8) and (10).

II. ANALYSIS

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A. STANDARD OF REVIEW AND SUMMARY DISPOSITION PRINCIPLES

This Court reviews de novo a trial court’s ruling on a motion for summary disposition. El-

Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). We also review

de novo questions concerning the interpretation and application of a statute. Estes v Titus, 481

Mich 573, 578-579; 751 NW2d 493 (2008). This Court likewise reviews de novo the issue whether

a privilege exists in connection with a defamation claim. Prysak v R L Polk Co, 193 Mich App 1,

15; 483 NW2d 629 (1992).

MCR 2.116(C)(8) provides for summary disposition when a “party has failed to state a

claim on which relief can be granted.” A motion under subrule (C)(8) tests the legal sufficiency

of a complaint. Ass’n of Home Help Care Agencies v Dep’t of Health & Human Servs, 334 Mich

App 674, 684 n 4; 965 NW2d 707 (2020). A trial court is only permitted to consider the pleadings

when deciding a motion under MCR 2.116(C)(8). Id. All of the factual allegations contained in

the complaint must be accepted as true. Id. And if no factual development could possibly justify

recovery, the trial court should grant the motion. Id.

MCR 2.116(C)(10) provides for summary disposition when, “[e]xcept as to the amount of

damages, there is no genuine issue as to any material fact, and the moving party is entitled to

judgment or partial judgment as a matter of law.” A motion under subrule (C)(10) tests the factual

support for a party’s cause of action. Ass’n of Home Help Care Agencies, 334 Mich App at 684 n

4. When judgment is sought on the basis of MCR 2.116(C)(10), “[a]ffidavits, depositions,

admissions, or other documentary evidence . . . are required[.]” MCR 2.116(G)(3)(b). “When a

motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may

not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as

otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for

trial.” MCR 2.116(G)(4).

A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the

pleadings, affidavits, and other documentary evidence, when viewed in a light most favorable to

the nonmoving party, demonstrate that there is no genuine issue with respect to any material fact.

Ass’n of Home Help Care Agencies, 334 Mich App at 684 n 4. “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). A trial court may not assess credibility, weigh the evidence, or resolve

factual disputes, and when material evidence conflicts, it is not appropriate for the court to grant

the motion for summary disposition. Ass’n of Home Help Care Agencies, 334 Mich App at 684 n

4. “Like the trial court’s inquiry, when an appellate court reviews a motion for summary

disposition, it makes all legitimate inferences in favor of the nonmoving party.” Skinner v Square

D Co, 445 Mich 153, 162; 516 NW2d 475 (1994). “Affidavits, depositions, admissions, and

documentary evidence offered in support of or in opposition to a motion . . . shall only be

considered to the extent that the content or substance would be admissible as evidence to establish

or deny the grounds stated in the motion.” MCR 2.116(G)(6); see also Maiden v Rozwood, 461

Mich 109, 121; 597 NW2d 817 (1999) (a court may only consider substantively admissible

evidence actually proffered by the parties when ruling on a motion).

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B. STATUTORY CONSTRUCTION

In Slis v Michigan, 332 Mich App 312, 335-336, 956 NW2d 569 (2020), this Court recited

the well-established principles governing statutory construction, observing as follows:

This Court’s role in construing statutory language is to discern and ascertain

the intent of the Legislature, which may reasonably be inferred from the words in

the statute. We must focus our analysis on the express language of the statute

because it offers the most reliable evidence of legislative intent. When statutory

language is clear and unambiguous, we must apply the statute as written. A court

is not permitted to read anything into an unambiguous statute that is not within the

manifest intent of the Legislature. Furthermore, this Court may not rewrite the plain

statutory language or substitute its own policy decisions for those decisions already

made by the Legislature.

C. DISCUSSION OF DEFAMATION PER SE AND RESOLUTION

In an extensive written opinion, the trial court summarily dismissed Cetera’s claim of

defamation per se on the basis that Mileto’s various statements within her postings were either

opinion, true, or not defamatory. The court also ruled as a matter of law that Mileto did not act

with malice; therefore, Mileto was shielded from liability by qualified immunity. The trial court

further concluded that there could be no defamation per se because Mileto’s statements did not

accuse Cetera of committing a crime or impute a lack of chastity.

The elements that must be established to sustain a defamation claim are (1) a false and

defamatory statement regarding the plaintiff, (2) a communication to a third party that is not

privileged, (3) fault on the part of the publisher that amounts to at least negligence, and (4) either

special harm caused by the publication or actionability of the statement regardless of special harm,

otherwise known as defamation per se. Smith v Anonymous Joint Enterprise, 487 Mich 102, 113;

793 NW2d 533 (2010).

Pursuant to 1961 PA 236, the Michigan Legislature enacted the Revised Judicature Act of

1961 (RJA), MCL 600.101 et seq. As part of that same legislation—1961 PA 236, MCL 600.2911

was enacted, addressing actions for libel and slander.1 MCL 600.2911, as amended by 1988 PA

396, provides, in pertinent part:

(1) Words imputing a lack of chastity to any female or male are actionable

in themselves and subject the person who uttered or published them to a civil action

for the slander in the same manner as the uttering or publishing of words imputing

the commission of a criminal offense.

1

As will be elaborated on later in this opinion, earlier Michigan statutes regarding libel and slander

can be traced back to the nineteenth century.

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(2)(a) Except as provided in subdivision (b), in actions based on libel or

slander the plaintiff is entitled to recover only for the actual damages which he or

she has suffered in respect to his or her property, business, trade, profession,

occupation, or feelings.

(b) Exemplary and punitive damages shall not be recovered in actions for

libel unless the plaintiff, before instituting his or her action, gives notice to the

defendant to publish a retraction and allows a reasonable time to do so, and proof

of the publication or correction shall be admissible in evidence under a denial on

the question of the good faith of the defendant, and in mitigation and reduction of

exemplary or punitive damages. . . . .

“MCL 600.2911(1) is the codification of the common-law principle that words imputing a lack of

chastity or the commission of a crime constitute defamation per se and are actionable even in the

absence of an ability to prove actual or special damages . . . .” Burden v Elias Bros Big Boy

Restaurants, 240 Mich App 723, 728; 613 NW2d 378 (2000) (emphasis added). “Where

defamation per se has occurred, the person defamed is entitled to recover general damages in at

least a nominal amount.” Id. (citations omitted). With respect to defamation per se, the

presumption of general damages is well settled in Michigan jurisprudence. Id. And a civil action

can proceed despite the lack of any proof of actual or special damages. Id. at 728-729.

“Accordingly, where a plaintiff brings an action alleging words imputing lack of chastity or

commission of a crime under MCL 600.2911(1), the inability to prove damages is not fatal to the

claim.” Id. at 729. The Burden panel did not indicate, recognize, or suggest that false and

defamatory statements concerning a business constitute defamation per se.

Count I of Cetera’s complaint alleged defamation per se in relation to its business

operations. On appeal, Cetera challenges the trial court’s ruling that a false and defamatory

statement about a party’s business, profession, or employment does not constitute defamation per

se. Cetera argues that such statements are defamatory per se. We note that Cetera does not argue

on appeal that it suffered actual financial or business losses, i.e., special harm, due to Mileto’s

postings; therefore, if there is no defamation per se, the defamation claim necessarily fails. In

support of its position that this case involves defamation per se, Cetera cites Heritage Optical Ctr,

Inc v Levine, 137 Mich App 793, 797; 359 NW2d 210 (1984) (“[f]alse and malicious statements

injurious to a person in his or her business are actionable per se, and special damages need not be

alleged or proved”). Cetera also relies on Croton v Gillis, 104 Mich App 104, 108-109; 304 NW2d

820 (1981) (“slander per se exists where the words are spoken of and concerning the person’s

profession and employment”). Finally, Cetera favorably cites Henkle v Schaub, 94 Mich 542, 548;

54 NW 293 (1893) (“Words, spoken or written, injurious to a person in his business, which are

false and malicious, are actionable per se, and special damages need not be alleged or proved.”).

MCL 600.2911(1) only recognizes statements imputing criminal conduct and lack of

chastity as constituting defamation per se. There is no mention of statements that concern a party’s

business, profession, or employment. Moreover, MCL 600.2911(2)(a) expressly states that “actual

damages” must be alleged and proven when a defamation claim pertains to a person’s “property,

business, trade, profession, occupation, or feelings.” The Legislature plainly and unambiguously

intended that actions for “defamation per se” be limited to those in which the false and defamatory

statements regard criminality and lack of chastity. With respect to Heritage Optical and Croton,

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they were decided before November 1, 1990; consequently, they are not binding on this panel.

MCR 7.215(J)(1). Moreover, neither Heritage Optical nor Croton made any mention of MCL

600.2911, even though the statute had been enacted in 1961.2

The Heritage Optical and Croton panels both relied on our Supreme Court’s decision in

Henkel. Heritage Optical, 137 Mich App at 797; Croton, 104 Mich App at 108-109. At the time

that Henkel was issued in 1893, the libel statute, 1885 PA 233, pertained solely to newspaper

publications, appeared to implicitly indicate that false and defamatory statements about criminal

activity constituted defamation per se, and, with some exceptions, only allowed recovery for actual

damages suffered in regard to property, business, trade, profession, or occupation. Henkel

involved slander and was wholly unrelated to any newspaper publication. And the Supreme Court

did not reference any statutory provision but instead relied on the common law to rule that special

damages need not be proven when false and defamatory statements about a business are at issue.

Henkel, 94 Mich at 548, citing Oliver v Perkins, 92 Mich 304; 52 NW 609 (1892); Haney Mfg Co

v Perkins, 78 Mich 1; 43 NW 1073 (1889).

After Henkel was decided, the Legislature enacted 1895 PA 216, extensively amending

1885 PA 233 such that the new statute encompassed libel and slander generally and provided in

subsection 1 as follows:

The People of the State of Michigan enact, That in suits brought for the

recovery of damages for libel or slander in this state, the plaintiff shall be entitled

to recover only such actual damages as he may have suffered in respect to his

property, business, trade, profession, occupation or feelings. [1897 CL 10423.]

1895 PA 216 did not state that any particular slanderous or libelous statement constituted

defamation per se, but the “actual damages” language expressly indicated that special harm was

necessary when suing in regard to a false and defamatory statement about a person’s business. In

Derham v Derham, 123 Mich 451, 455; 82 NW 218 (1900), there was no proof that actual damages

were sustained in regard to the plaintiff’s property, business, trade, profession, or occupation as

the result of alleged defamatory statements, and the Michigan Supreme Court, citing subsection 1

of 1895 PA 216 (1897 CL 10423), held that there was no error in precluding the jury from

considering a damage award on those matters.

Thereafter, Michigan’s libel and slander statute went through various changes, see 1915

CL 12757 and 12759, and eventually, before the enactment of the RJA in 1961, the Legislature

codified imputation of criminal conduct and lack of chastity as constituting defamation per se,

while continuing to require “actual damages” in relation to false and defamatory statements about

a person’s property, business, trade, profession, or occupation, 1929 CL 14471-14473; 1948 CL

2

We note that even before the amendment of MCL 600.2911 in 1988, see 1988 PA 396, MCL

600.2911(1) referred solely to “lack of chastity” and “commission of a criminal offense,” 1961 PA

236. And MCL 600.2911(2)(a) demanded proof of “actual damages” in relation to defamation

concerning “property, business, trade, profession, occupation, or feelings.” 1961 PA 236.

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620.21-620.23. We conclude that there simply is no basis in statute or binding caselaw to support

Cetera’s stance that false and defamatory statements about one’s business constitute defamation

per se.

In sum, we hold that Cetera failed to state a claim of defamation per se. We reject the

application of Henkel, Heritage Optical, and Croton to override the plain and unambiguous

language of MCL 600.2911(1) and (2)(a). Resort to defamation per se is only available when

statements impute the commission of a crime or the lack of chastity.3

D. DISCUSSION OF EXEMPLARY DAMAGES AND RESOLUTION

In regard to Cetera’s count in the complaint regarding exemplary damages, the trial court

astutely recognized that a claim for exemplary damages is not an independent cause of action but

simply a form of damages for, in this instance, defamation. The trial court ruled that even were

Cetera able to proceed on its defamation-per-se claim, it would not be eligible for exemplary

damages because as a matter of law, Mileto did not act with the requisite malice. On appeal, Cetera

argues that there exist jury questions concerning whether Mileto retracted her statements in

accordance with MCL 600.2911(2)(b) and whether she wrote the posts with malice.

Once again, MCL 600.2911(2)(a) provides that “[e]xcept as provided in subdivision (b), in

actions based on libel or slander the plaintiff is entitled to recover only for the actual damages

which he or she has suffered in respect to his or her property, business, trade, profession,

occupation, or feelings.” And subdivision (b) sets forth retraction-request criteria for obtaining

exemplary damages.4 In tandem, we construe MCL 600.2911(2)(a) and (b) to mean that a plaintiff

can potentially recover exemplary damages on top of actual damages based on libel or slander

when harm is sustained with respect to, in pertinent part, the plaintiff’s business, trade, profession,

or occupation. We do not interpret the language to suggest that exemplary damages can be

awarded as an alternative to or instead of actual damages. Indeed, absent defamation per se and

special harm in the form of actual business losses, the elements of defamation cannot be

established. Smith, 487 Mich at 113.

Our construction of how MCL 600.2911(2)(a) and (b) work in conjunction with each

other—that is, exemplary damages can potentially be recovered on top of an award of actual

damages—is supported by our Supreme Court’s opinion in Peisner v Detroit Free Press, Inc, 421

Mich 125; 364 NW2d 600 (1984). The Peisner Court observed that “exemplary and punitive

damages pick up where actual damages leave off,” id. at 135, and that “while in fact both ‘actual’

and ‘exemplary and punitive’ damages compensate the plaintiff, the latter operates to increase

3

In light of our holding, it is unnecessary to address any of the additional arguments posed by

Cetera relative to the claim of defamation per se.

4

We are limiting our language and discussion to exemplary damages because Cetera did not make

a claim for punitive damages; however, our analysis and reasoning would apply to both exemplary

and punitive damages.

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‘actual’ compensation,” id. at 141.5 Accordingly, because there was no defamation per se and

Cetera does not argue that it can show actual damages or special harm to its photography business,

there can be no exemplary damages. Thus, we hold that the trial court did not err by summarily

dismissing Cetera’s claim for exemplary damages.

E. DISCUSSION OF FALSE LIGHT INVASION OF PRIVACY AND RESOLUTION

The trial court summarily dismissed the FLIOP claim because it determined that Mileto

did not broadcast the information in the postings to the general public or to a large enough number

of people. The court also found that the FLIOP claim failed because the broadcasted information

was not unreasonable or highly objectionable, nor did Mileto act with the required recklessness in

broadcasting the information. On appeal, Cetera challenges each of the trial court’s conclusions.

In Puetz v Spectrum Health Hosps, 324 Mich App 51, 69; 919 NW2d 439 (2018), this

Court stated:

An invasion-of-privacy claim protects against four types of invasion of

privacy: (1) intrusion upon the plaintiff’s seclusion or solitude or into his private

affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3)

publicity that places the plaintiff in a false light in the public eye; and (4)

appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. In

this case, Puetz’s claim is based on the third type: false light. In order to maintain

an action for false-light invasion of privacy, a plaintiff must show that the defendant

broadcast to the public in general, or to a large number of people, information that

was unreasonable and highly objectionable by attributing to the plaintiff

characteristics, conduct, or beliefs that were false and placed the plaintiff in a false

position. Further, the defendant must have known of or acted in reckless disregard

as to the falsity of the publicized matter and the false light in which the plaintiff

would be placed. [Quotation marks and citations omitted.]

We hold that Cetera’s case simply does not fit a cause of action for FLIOP. The

circumstances did not involve Cetera’s right to privacy or concern the need to protect Cetera’s

privacy. In Reed v Ponton, 15 Mich App 423, 426; 166 NW2d 629 (1968), this Court, speaking

of FLIOP, indicated that the required “publicity must lift the curtain of privacy on a subject matter

that a reasonable man of ordinary sensibilities would find offensive and objectionable:

supersensitiveness is not protected[.]” (Emphasis added.) In Beaumont v Brown, 401 Mich 80,

93; 257 NW2d 522 (1977), overruled in part on other grounds by Bradley v Bd of Ed of the Saranac

Community Schs, 455 Mich 285, 302; 565 NW2d 650 (1997), our Supreme Court, citing De May

v Roberts, 46 Mich 160; 9 NW 146 (1881), noted that “Michigan was one of the first jurisdictions

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The Court indicated that exemplary and punitive damages were actually intended by the

Legislature to be compensatory in nature, compensating the defamed person for injured feelings.

Peisner, 421 Mich at 135.

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to acknowledge the concept of ‘right of privacy.’ ” After citing a 1948 opinion by the Michigan

Supreme Court addressing a claim of invasion of privacy, the Beaumont Court observed:

Since 1948 Michigan has continued to recognize the right of the individual

to privacy. An overwhelming majority of state courts has recognized a common

law right to privacy, and the United States Supreme Court has also recognized a

constitutional right to privacy. Several states have enacted legislation protecting the

individual’s right to privacy. The federal government has recently enacted such

legislation. In this ever-advancing society all are concerned that the individual’s

integrity and independence are not obliterated by the dissemination of unnecessary

information about his private life. [Beaumont, 401 Mich at 95 (citations omitted;

emphasis added).]

We find particularly persuasive an older case from California. In Patton v Royal Indus,

Inc, 263 Cal App 2d 760, 763-764; 70 Cal Rptr 44 (1968), the two plaintiffs had worked for the

defendant in the aircraft and spacecraft industry before resigning to go into business for

themselves, and the defendant sent letters to numerous customers stating that the plaintiffs had

been terminated from employment and replaced with better and more experienced and

knowledgeable personnel. The plaintiffs pursued, in part, a FLIOP claim against the defendant.

Id. at 767. The California court noted that “the tort of invasion of the right of privacy affords

protection to a fundamentally different interest than that safeguarded by the law of defamation[,]”

and it then ruled:

[The] [p]laintiffs . . . refer to statements in the letter considered to be

defamatory and say “All of this conduct placed plaintiffs in a ‘false light.’ ” This,

of course, is true, but it by no means indicates there was an invasion of the right of

privacy. There is and could be no authority for the broad contention that publicity

which places one in a false light is an invasion of his privacy, even though it

discloses no fact whatever relative to his private life which he wishes to keep secret.

Neither Prosser nor any other authority has ever said anything of the sort.

The argument of plaintiffs blandly ignores the fact that what is public is not

private and what is private is not public. . . . . [Id.]

In the instant case, Mileto’s postings concerned Cetera’s public business operations; there

was nothing of a personal and private nature in the postings. We fail to see how complaints

regarding the manner in which Cetera conducted its business, even if false and unreasonable, had

any relationship to the private lives of Ava or Julian Cetera. We conclude that this is not a case

implicating the right to privacy. Moreover, we hold as a matter of law that the postings cannot be

characterized as being highly objectionable, especially considering that they did not concern

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anyone’s private life. Puetz, 324 Mich App at 69. Accordingly, we uphold the trial court’s ruling

dismissing the FLIOP claim.

We affirm. Having fully prevailed on appeal, Mileto may tax costs under MCR 7.219.

/s/ Jane E. Markey

/s/ Mark T. Boonstra

/s/ Michael J. Riordan

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