Opposition Brief — Evening News Ass'n v. Locricchio

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No 84-437 OCT 23 1984

ALIA NGERES-STEVAS,

CLERK

In The

Supreme Court of the United States

October Term, 1984

THE EVENING NEWS ASSOCIATION, PETE WALD-

MIER, BILL GILES, JEFF LADERMAN, MICHAEL

IF’, WENDLAND, JEAN GADOMSKI, RICHARD WILL-

ING, ROBERT ANKENY and JIM GRAHAM,

Petitioners,

VS.

JOSEPH JUDEUS LOCRICCHIO and

GARY FRANCELL,

Respondents.

fal

RESPONSE IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE SUPREME

COURT FOR THE STATE OF MICHIGAN

JEREMIAH J. KENNEY

Kircu, SUHRHEINRICH,

Saursier & Drutcuas, P.C.

2000 Buhl Building

Detroit, Michigan 48226

Telephone: (313) 964-5890

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CoO., (800) 835-7427 Ext. 333

4 p>

BEST AVAILABLE COPY "gia

QUESTION PRESENTED

Should This Court Grant Certiorari Upon Petition-

ers’ Request Where Petitioners Failed To Present To The

Trial Court And Now Fail To Present To This Court

Any Basis For Granting Petitioners’ Motion For Partial

Summary Judgment In The Trial Court?

TABLE OF CONTENTS

Pages

Table of Contents ... ii

Table of Authorities ili

Opinions and Orders Below yc

Jurisdiction 2

Constitutional Provisions Involved > a

Statement of the Case oe

Reasons for Denying the Writ:

I. DEFENDANTS’ PETITION FOR WRIT

OF CERTIORARI IS BOTH FACTUALLY

ERRONEOUS AND MISLEADING 4

Il. DEFENDANTS’ PETITION FOR WRIT

OF CERTIORARI IS WITHOUT MERIT... 8

CONN viccsccreieiscvsithinciiateaanencieadan eee ee 24

Appendix A la

iii

TABLE OF AUTHORITIES

CasEs: Pages

Borgess Hospital v. Berrien County, 114 Mich. App.

385, 386 n. 1; 319 N.W. 2d 354 (1982), leave denied,

417 Mich. 865 (1983) 9

Brown v. First National Bank, 193 N.W. 2d 547, 553

(Iowa 1972) 15

Caldwell v. Crowell-Collier Publishing Co., 161 F.2d

333, 335-36 (5th Cir.), cert. dented, 332 U.S. 766

(1947) 16, 21

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) ..13, 22

De Guvera v. Sure Fit Products, 14 Mich. App. 201;

165 N.W. 2d 418 (1968)

DeMare Brothers Const. Co., Inc. v. Teska, 49 Mich.

App. 642; 212 N.W. 2d 602 (1973) 12

Duncan v. The Record Publishing Co., 145 S.C. 196;

143 S.E. 31 (1927) 16

Edwards v. Chandler, 14 Mich. 471, 476; 90 Am Dee.

249 (1866) 15

Field Research Corp. v. Superior Court, 77 Cal. Rptr.

243; 453 P. 2d 747 (1969) ... 16

Fleckenstein v. Friedman, 266 N.Y. 19, 23; 193 N.E.

537, 538 (1937) 15

Garrison v. Louisiana, 379 U.S. 64 (1964) 22

Gaynes v. Allen, 128 Mich. App. 42; 128 N.W. 2d 42

(1983) : 11, 22

Gertz v. Robert Welch, Inc., 418 U.S. 323

(1974) 13, 20, 22, 23, 24

Gooding v. Wilson, 405 U.S. 518 (1971) 23

Harris v. Curtis Publishing Co., 49 Cal. App. 2d 340;

12) P. 2d 761 (1942) 16

TABLE OF AUTHORITIES—Continued

Cases: Pages

Howard v. Southern California Ass’d Newspapers,

95 Cal. App. 2d 580; 213 P. 2d 399 (1950) asedaniaa 16

Hysko v. Polonia Publishing Co., 239 Mich. 676, 681;

SE I ec NED Aiatissiceietnstiliennianetihnidiiaehiipinabainitnnmnape 15

Jones v. Schaeffer, 122 Mich. App. 301, 304; 332 N.W.

2d 423 (1982) 23

Kenney v. Hatfield, 351 Mich. 498, 512; 88 N.W. 2d

(1958) 15

Letter Carriers v. Austin, 418 U.S. 264 (1974) 22

Lins v. Evening News Association, 129 Mich. App.

419; 342 N.W. 2d 573 (1983) 14

Lonkhuyzen v. Daily News Co., 195 Mich. 283, 295;

161 N.W. 979 (1917) 15

Marion v. Davis, 217 Ala. 16, 18; 114 So. 357, 359

(1927) sis caelchl lel abled esaleaaaachih ii See 16

Memphis Publishing Co. v. Nichols, 569 S.W. 2d 412,

419-420 (Tenn. 1978) 15

Mikhalik v. Duprey, 417 N.W. 2d 1238, 1239 (Mass.

App. 1981) 16

Moore v. Booth Publishing Co., 216 Mich. 653, 656;

185 N.W. 780 (1921) 14

Moultrie v. DAIIE, 123 Mich. App. 403, 407-408; 333

N.W. 2d 298 (1983) 9

NAACP v. Burton, 371 U.S. 415 (1963) 23

New York Times Co. v. «ullivan, 376 U.S. 254 (1964) 13, 22

Postill v. Booth Newspapers, 118 Mich. App. 608, 618;

325 N.W. 2d 511 (1982) 11, 12, 13, 22

Rice v. Simmons, 2 Harr. (Del.) 417, 433; 31 Am. Dee.

766 (1839) 16

TABLE OF AUTHORITIES—Continued

CASES: Pages

Sanders v. Evening News Ass’n, 313 Mich. 334, 343;

21 N.W. 2d 152 (1946) ......... 15, 23

Schaefer v. Lynch, 406 So. 2d 185, 188 (La. 1981) 16

Simons v. Burnham, 102 Mich. 189, 195-96 (1894) WW. =15

State v. Burnham, 9 N.H. 34 (1837) 22

Tropeano v. Atlantic Monthly Co., 379 Mass. 745; 400

N.E. 2d 847 (1980) 16

Turner v. Brien, 184 Towa 320, 326; 167 N.W. 584, 586

(1918) 11

W. E. Westfall, Inc. v. Michigan Bell Telephone Co.,

129 Mich. App. 301, 303-304; 341 N.W. 2d 514 (1983) 9

Wilson v. Scripps-Howard Broadcasting Co., 642 F.

2d 371 (6th Cir.), cert. dented, 454 U.S. 962 (1981) 20, 21

Winters v. New York, 333 U.S. 507 (1948) 23

Wynn v. Cole, 68 Mich. App. 706; 243 N.W. 2d 923

(1976) 5

Rvutes OF THE SuPREME Court oF THE UNITED STATES:

Rule 17 7, 8, 24

Rule 17.1(b) 9, 20, 22, 24

Rule 17.1(c) 23

Rule 21.5 7, 24

Court RuLes AND STATUTES:

Fed. R. Civ. P. 56(c) 12, 19

MICH. GEN. CT. RULE 117 13

MICH. GEN. CT. RULE 117.2(3) 12, 17, 19

TABLE OF AUTHORITIES—Continued

MICH. GEN, CT. RULE 117.3

Pages

12, 17

Mich. Comp. Laws Annotated § 600.2911

FED. R. EVID. 801(a)

MICH. R. EVID. 801(a)

OTHER AUTHORITIES:

Black’s Law Dictionary 1263 (revised 5th ed. 1979) .. 11

Merriam-Webster Thesaurus (1978)

Webster’s Collegiate Thesaurus (1976)

No. 84-437

In The

Supreme Court of the United States

October Term, 1984

fay

THE EVENING NEWS ASSOCIATION, PETE WALD-

MIER, BILL GILES, JEFF LADERMAN, MICHAEL

F. WENDLAND, JEAN GADOMSKI, RICHARD WILL-

ING, ROBERT ANKENY and JIM GRAHAM,

Petitioners,

vs.

JOSEPH JUDEUS LOCRICCHIO and

GARY FRANCELL,

Respondents.

ray

RESPONSE IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE SUPREME

COURT FOR THE STATE OF MICHIGAN

ray

OPINIONS AND ORDERS BELOW

Respondents accept Petitioners’ statement of the ap-

plicable opinions and orders below and incorporate same

by reference.

JURISDICTION

Respondents upon information and belief accept Peti-

tioners’ statement as to jurisdiction.

ra™

CONSTITUTIONAL PROVISIONS INVOLVED

Respondents acknowledge that Petitioners claim in-

terference with the First and Fourteenth amendments of

the Constitution of the United States of America; re-

spondents deny any such interference.

STATEMENT OF THE CASE

Petitioners’ Petition for Writ of Ceriiorari repre-

sents the “last gasp” attempt by petitioners (hereinafter

“defendants’’) to partially abolish the law of defamation,

at least in the State of Michigan.

Pursuant to editorial decision-making, defendants

published numerous calculated defamatory articles about

respondents (hereinafter ‘‘plaintiffs’’), falsely portray-

ing, implying, and insinuating that plaintiffs were mem-

bers of the so-called ‘‘Mafia” or other organized crime

group.

As a part of this litigation, each plaintiff has sub-

mitted an affidavit under oath that he was not a member

of the Mafia.

Defendants have acknowledged at their depositions in

this case that they do not believe that plaintiffs were

members of the Mafia or otherwise involved in organized

crime, notwithstanding their earlier articles to the con-

trary, thereby establishing ‘‘actual malice’’.

Plaintiffs’ action for defamation (and other theories)

was commenced on or about April 3, 1980.

Defendants’ second motion for summary judgment,

which forms the basis for this attempted appeal, was sub-

sequently filed alleging that there was no genuine issue of

material fact. This motion did not attach the requisite

affidavit in support based upon personal knowledge. At

oral argument on the motion, defendants cited only one

ease to the trial court, which did not support their posi-

tion. The trial court denied the motion for summary

judgment, finding a genuine issue of material fact.

In initiating its appeal, defendants asked the trial

court to certify that there was a controlling question of

law involved as to which there was a ‘‘substantial ground

for difference of opinion” under Michigan law; the trial

court declined to do so, as defendants had failed to estab-

lish that there existed any authority in support of de-

fendants’ position.

The Michigan Court of Appeals granted defendants

leave for an interlocutory appeal, but after full briefing

and oral argument, the Michigan Court of Appeals in an

unanimous unpublished per curiam opinion affirmed the

trial court.' Defendants’ request for rehearing was

denied.

1A much more detailed account of the underlying facts

material to this matter is contained in plaintiffs’ Brief on Appeal

in the Michigan Court of Appeals, which is reprinted in full

in Appendix A infra, with minor typographical corrections.

Defendants’ application for leave to appeal to the

Michigan Supreme Court was denied, as that court was

not persuaded that interlocutory review was necessary.

Defendants’ request for reconsideration was denied.

Defendants’ present Petitica for Writ of Certiorari

should similarly be denied, for the reasons set forth be-

low.

REASONS FOR DENYING THE WRIT

I. Defendants’ Petition For Writ Of Certiorari

Is Both Factually Erroneous And Misleading.

For purposes of correcting defendants’ erroneous and

misleading statements of fact in defendants’ Petition for

Writ of Certiorari, plaintiffs advise this Court that:

1. Plaintiffs, contrary to defendants’ characteriza-

tion in their ‘‘Statement of the Case’’, page 3, paragraph

1, sentence 1, are not the primary operators of Pine Knob.

Many of the operations of Pine Knob have been conducted

by the Nederlander theater organization since 1972, includ-

ing the Pine Knob Music Theater itself. Further, as pre-

viously reported by defendants’ own newspaper, plaintiffs

have lost their interest in Pine Knob through involuntary

bankruptcy vroceedings.’ Plaintiffs submit, and stand

2Detroit News, February 23, 1984, page 3-A, column 4;

defense counsel apparently do not subscribe to defendants’

advertising claims that “If you read the News you know”; see

also In the Matter of Pine Knob Investment Company, United

States Bankruptcy Court, Eastern District of Michigan, Consoli-

dated Case Nos. 80-00872-G; 80-00873-G; 80-00874-G; and

80-00875-G, including February 15, 1984, Amended Order Con-

firming Sale of Assets.

ready to prove at trial, that the loss of their ownership of

and other beneficial interests in the operations of Pine

Knob was proximately caused by defendants’ false and

defamatory publications regarding plaintiffs’ business ac-

tivities.

2. Plaintiffs, contrary to defendants’ assertion in

their ‘‘Statement of the Case’’, page 3, paragraph 2, sen-

tence 1, have never had ‘‘public careers’’ and are not in

fact public figures of any type; defendants have not asked

the trial court to so hold and no court has in fact so held.

3. Plaintiffs, contrary to defendants’ assertion in

said sentence, have never been “charged with organized

crime involvement’’ except by the Detroit News, its par-

ent corporation (defendant Evening News Association),

and other named defendants in this action.

4, Upon information and belief and contrary to the

undocumented assertion contained in page 3, paragraph 3,

sentence 1 of said ‘‘Statement”, no print or electronic re-

ports concerning plaintiffs appeared in the media prior to

the commencement of defendants’ calculated and un-

founded smear campaign against plaintiffs.

5. Contrary to page 3, paragraph 4, sentence 4 of

said ‘‘Statement’’, plaintiffs’ initial Complaint in state

court atlached as exhibits each of defendants’ false and

defamatory articles, clearly notifying each defendant of

the statements forming the basis for plaintiffs’ defama-

tion claims, consistent with Michigan defamation pleading

requirements.’

3See, e.g., Wynn v. Cole, 68 Mich App. 706; 243 N.W.2d

923 (1976); De Guvera v. Sure Fit Products, 14 Mich App. 201;

165 N.W. 2d 418 (1968) (in a declaration of libel plaintiff mere-

ly must set forth the contents of the alleged libel and where it

was published).

6. Contrary to page 4, second full paragraph, sen-

tence 2, of said ‘‘Statement”, plaintiffs have never stated

that ‘‘they did not base their libel claim on any false

statement of fact’’; to the contrary, plaintiffs submit that

defendants’ publications constitute one or more false

statements of fact, creating a false and defamatory state-

ment about and concerning plaintiffs through half-truths

and calculated insinuations, implications, innuendos, por-

trayals, characterizations, and imputations. Defendants

have reiterated this false characterization of plaintiffs’

position in this litigation at various locations in their Pe-

tition ;* of course—and despite defendants’ best misleading

efforts—repetition of a false statement by defendants, in

this instance defendants’ misstatement of plaintiffs’ liti-

gation posture, does not make the false statement true.

Plaintiffs therefore respectfully ask this Court to disre-

gard these false statements in its consideration of de-

fendants’ Petition.

7. Contrary to defendants’ misleading statement in

the second sentence of the first full paragraph on page 6

of said ‘‘Statement”, the Michigan Court of Appeals did

not hold that plaintiffs ‘‘had not and could not identify

any statement of fact contained in the news reports which

they claim is false’’ nor did that Court’s decision state or

imply that plaintiffs gave defendants ‘‘absolutely no no-

tice of what they are called upon to defend in this action.”

Defendants’ “Statement’’ is not only misleading but also

improperly argumentative. Defendants’ version somehow

misconstrues the following plain language of the Michigan

Court of Appeals, which stated in pertinent part:

4See, e.g., “Statement of the Case”, page 5, first full para-

graph, sentence 2.

Insinuation, imputation or inference may be as defa-

matory as a direct, unveiled assertion.

Plaintiffs did not concede the truth of the alleged in-

sinuation.°

Furthermore, the unpublished per curiam decision of the

Michigan Court of Appeals did not discuss at all defend-

ants’ present ‘‘due process-notice’’ argument as it was not

developed by defendants in that forum.

8. Defendants’ characterization of the Michigan Su-

preme Court’s action on defendants’ application for leave

to appeal to that forum is misleadingly incomplete. In the

second paragraph, third sentence on page 6 of said

‘‘Statement”, defendants’ imply that the Michigan Su-

preme Court made a decision on the merits in this matter;

that implication is inaccurate. As set forth in defendants’

Appendix D to their Petition, the Michigan Supreme

Court merely denied leave to appeal ‘‘ because the Court is

not persuaded that the question should now be reviewed

by this court.’

Plaintiffs submit that these negligent and/or inten-

tional misstatements, both erroneous and misleading, are

sufficient grounds alone for this Court to exercise its dis-

cretion under its Rule 17 to deny this Petition, pursuant

to the provisions of this Court’s Rule 21.5.’

5Petitioners’ Appendix B, at 5a (citations omitted).

6Petitioners’ Appendix D, at 10a (emphasis added).

7Rule 21.5 states in pertinent part: ‘The failure of a peti-

tioner to present with accuracy, brevity, and clearness what-

ever is essential to a ready and adequate understanding of the

points requiring consideration will be a sufficient reason for

denying his petition.” Rules of the Supreme Court of the Unit-

ed States, Rule 21.5 (1980) (as revised and amended).

II. Defendants’ Petition For Writ Of Certiorari

Is Without Merit.

Rule 17.1 of this Court’s Rules states in pertinent

part that:

A review of writ of certiorari is not a matter of right,

but of judicial discretion, and will be granted only

when there are special and important reasons there-

for. The following... indicate the character of rea-

sons that will be considered.

(b) When a state court of last resort has decided a

federal question in a way in conflict with the decision

of another state court of last resort or of a federal

court of appeals.

has decided an important question of federal law

which has not been, but should be, settled by this

Court, or has decided a federal question in a way in

conflict with applicable decisions of this Court.®

For the reasons set forth below, defendants’ Petition is

without merit, particularly in light of this Court’s stated

considerations.

A. The Michigan Supreme Court Has Not

Decided Any Issue In This Case.

As stated above, the Michigan Supreme Court has not

decided any issue in this case. The Michigan Supreme

Court’s only relevant action has been to deny defendants’

Application for Leave to Appeal to that court due to de-

fendants’ failure to persuade that court that review by

that court was necessary at that time.’ Clearly, no deci-

8/d. at Rule 17.

9Ild. Reconsideration was also denied by the court, “be-

cause it does not appear that the order was entered erroneous-

ly.” Petitioners’ Appendix E, at 11a.

sion on the merits of defendants’ claims—or lack thereof

—was made by that court.

B. The Michigan Supreme Court Has Not Decid-

ed Any Federal Question In This Case, And

Therefore, Has Not Decided Any Federal

Question In Conflict With The Decision Of

Any Other Court.

The Michigan Supreme Court has not decided

any issue in this case. A fortiori, the Michigan Su-

preme Court has not decided any federal question in this

case. A fortiori, the Michigan Supreme Court has not de-

cided any federal question in this case in conflict with the

decision of any other state court of last resort or of a

federal court of appeals. Therefore, under Rule 17.1(b),

certiorari is disfavored and should be denied.

C. The Decision Of The Michigan Court Of Ap-

peals In This Case Was An Unpublished Per

Curiam Decision Having No Precedential Ef-

fect.

The August 24, 1983, decision of the Michigan Court

of Appeals in this matter was an unpublished, per curiam

decision. In Michigan, unpublished decisions of the Mich-

igan Court of Appeals have no precedential effect whatso-

ever.'°

loW. E. Westfall, Inc. v. Michigan Bell Telephone Co., 129

Mich. App. 301, 303-304; 341 N.W. 2d 514 (1983) (“We remind

members of the bench and bar that unpublished opinions of

this Court are without precedential value.’’); Moultrie v.

DAIIE, 123 Mich. App. 403, 407-408; 333 N.W. 2d 298 (1983);

Borgess Hospital v. Berrien County, 114 Mich. App. 385, 386

n. 1; 319 N.W. 2d 354 (1982), leave denied, 417 Mich. 865

(1983).

D. The Decision Of The Michigan Court Of Ap-

peals In This Case Was Correct, Proper, And

Consistent With Earlier Decisions Of The

Michigan And Federal Courts.

Unfortunately, defendants’ Petition needlessly but

apparently intentionally muddles critical concepts. Once

those concepts are clarified and reference made to earlier

decisions of the Michigan and federal courts, it is clear

that the unpublished decision of the Michigan Court of

Appeals in this case was correct, proper, and consistent.

1. The word ‘‘statement’’ means more

than “word by word” or “sentence”.

Defendants’ Petition unnecessarily and inappropri-

ately attempts to limit the word ‘‘statement” to mean

‘‘word by word” or ‘‘sentence”.

This is not the common, or the legal, understanding of

the word ‘‘statement’’, which is “‘communication creating

an impression”. Commonly accepted ‘‘statements” include

‘‘fashion statements”, themes in musical compositions,

summaries of financial data, and other impressions. The

Merriam-Webster Thesaurus (1978) regards ‘‘statement’’

as synonomous with ‘‘expression’’, as does Webster’s Coll-

legiate Thesaurus (1976), which further relates ‘‘state-

ment” to ‘‘outgiving”, ‘‘presentation”, and ‘‘present-

ment’’.

Further, legal definitions support a broader interpre-

tation of ‘‘statement’’ than that ascribed to by defendants.

FED. R. EVID. 801(a) specifically defines ‘‘statement”

to include both oral and written assertions and ‘‘nonver-

bal conduct of a person’; FED. R. EVID. 801(a) does

not say ‘‘word by word”’ or ‘‘sentence”.'"! Similarly, in

Turner v. Brien,'? the Iowa Supreme Court correctly

noted that ‘‘it is the thought conveyed, not the words, that

does the harm’’.

Clearly, “statement”? means communication creating

an impression, not ‘‘word by word’? or ‘‘sentence’’. De-

fendants have had notice of each such statement since the

day they were served with the initial Complaint in this

matter, which attached as exhibits copies of each of the

defamatory articles.

2. Defendants needlessly muddle pre-

trial and trial standards when dis-

cussing plaintiffs’ burden of proof.

Defendants further seek unnecessarily to confuse this

Court by their implicit reliance on factually and proce-

durally distinct legal precedents, needlessly muddling pre-

trial and trial standards."

Defendants, for example, have repeatedly relied upon

Postill v. Booth Newspapers’ and Gaynes v. Allen'® as

See also MICH. R. EVID. 801(a) (identical to FED. R.

EVID. 801(a)); Black’s Law Dictionary 1263 (revised 5th ed.

1979) (“In a general sense, an allegation ... .”). In this con-

text, “allegation” is synonomous with “implication”, ‘innuen-

do”, “portrayal”, and “insinuation”.

12184 lowa 320, 326; 167 N.W. 584, 586 (1918).

13See text accompanying n. 2 supra.

4This muddling takes place principally in Petitioners’ Ap-

pendix H, which incorporates a substantial portion of defend-

ants’ earlier pleadings in the Michigan Supreme Court, and

which implicitly is suggested to this Court as grounds for grant-

ing defendants’ Petition.

15118 Mich. App. 608, 618; 325 N.W. 2d 511 (1982).

16428 Mich. App. 42; 128 N.W. 2d 42 (1983).

supportive of their quest for summary judgment. Defend-

ants rely upon Postil for the proposition that ‘‘ plaintiff

still must prove falsity.”’’ Defendants apparently read

Postill to abolish Michigan General Court Rule 117.2(3)'

in de“.mation cases involving the Detroit News; rather

than ascertaining whether there exists a genuine issue of

material fact precluding disfavored summary disposition,

the Detroit News would have the trial court swear a jury

and take ‘‘proofs” in a mini-trial upon their filing of a

motion for summary judgment. Defendants apparently

read the post-trial Postill decision to call for accelerated

17Petitioners’ Appendix H at 66a-67a generally; quotation

at 67a, lines 2-3.

18Michigan General Court Rule 117.2(3) (cited in Michigan

court pleadings as GCR 1963, 117.2(3)). Defendants’ second

motion for summary judgment in the trial court, dated March

12, 1982, was expressly based upon the provisions of Michi-

gan General Court Rule 117.2(3), “that except as to the amount

of damages there is no genuine issue as to any material fact,

and the moving party is, therefore, entitled to judgment as a

matter of law.” See by analogy Fed. R. Civ. P. 56(c).

In support of their second Motion for Summary Judgment,

defendants argued that there existed no genuine issue as to

any material fact as plaintiffs had admitted the truth of each

of the defamatory newspaper articles. As set forth at length

above, this was a false assumption; plaintiffs indicated that

the claims were not necessarily based upon a particular sen-

tence, but that the entire series of articles falsely portrayed,

insinuated, imputed and/or implied that plaintiffs were mem-

bers of the Mafia. In further support of their response, plain-

tiffs each signed an affidavit indicating that they were not

members of the Mafia. Defendants failed to comply with the

requirements of Rule 117.3 by failing to attach an appropri-

ate factual supporting affidavit with their second summary

judgment motion; no affidavit based upon personal knowledge

was ever submitted by defendants in support of their second

motion for summary judgment. Under Michigan law, failure

to file such an affidavit means the Motion for Summary judg-

ment must automatically be denied by the trial court. See,

e.g., DeMare Brothers Const. Co., Inc. v. Teska, 49 Mich. App.

642; 212 N.W. 2d 602 (1973).

trials and proofs; such is not the case. The post-trial

Postwul decision obviously (1) did not address pre-trial

summary judgment standards and (2) did not establish

any mini-trial requirement. Plaintiffs will comply with

the falsity requirement at trial; plaintiffs stand ready to

prove liability and damages at trial, but are not required

to do so under Michigan procedural law on defendants’

motion for summary judgment, only that ‘‘a genuine is-

sue of material fact’’ exists, which is the case unless de-

fendants are now admitting the false and defamatory

nature of their publications.

Similarly, defendants’ reliance in this forum on post-

trial cases such as New York Times Co. v. Sullivan,'®

Gertz v. Robert Welch, Inc.,° and Curtis Publishing Co.

v. Butts”! is misleading and regrettable. In each of those

cases this Court considered a post-trial appeal from jury

verdicts of $500,000, $50,000, and $960.00”? respectively.

Plaintiffs will prove falsity at trial, before a jury of

their peers. Plaintiffs are not constitutionally or other-

wise required to ‘‘prove” falsity prior to trial, merely to

state a claim and demonstrate that there exists a genuine

issue of material fact, including as to the “falsity” re-

quirement, which has been done.”

19376 U.S. 254 (1964).

20418 U.S. 323 (1974).

21388 U.S. 130 (1967).

22This Court’s Curtis Publishing decision considered two

cases simultaneously, Curtis Publishing Co. v. Butts (with a

verdict of $460,000) and Associated Press v. Walker (with a

verdict of $500,000).

23Michigan General Court Rule 117.

3. Contrary to defendants’ brash char-

acterization of the impact of the Mich-

igan Court of Appeals’ unpublished

decision in this case, this decision

has had no known impact on free

speech in Michigan or elsewhere.

As noted above, the decision of the Michigan Court

of Appeals in this matter was an unpublished per curiam

decision with no precedential effect.* Upon information

and belief, the only generally published note regarding

this Michigan Court of Appeals decision appeared in the

Detroit News itself25 For defendants to attempt to boot-

strap and/or manipulate the publie’s knowledge of this un-

published and non-precedential decision into some per-

ceived “chilling effect” is preposterous, particularly when

defendants seek to blame their own publications for cre-

ating this pereeived ‘‘chilling effect”.

Even more ineredible is defendants’ apparent argu-

ment that the Michigan Court of Appeals decision—wholly

consistent with prior law (case law and statutory) in the

states of Michigan,”° Tennessee,’’? New York,’* Lowa,” Lou-

4See n. 9 supra.

2SDetroit News, a 26, 1983, page 4-B, column 1 (in-

cluding republication of defamatory material, thereby exacer-

bating plaintiffs’ damages).

26Important Michigan statutory law includes Mich. Comp.

Laws Annotated § 600.2911 (imputation of unchastity; imputa-

tion of a crime).

important Michigan case law includes a 1983 decision against

the Detroit News, Lins v. Evening News Association, 129 Mich.

ve. 419; 342 N.W. 2d 573 (1983), wherein the Michigan Court

of Appeals stated:

(Centinued on next page)

(Continued from previous page)

In his opinion, the trial judge concluded that, as a matter

of law, taking the column as a whole, a legally actionable

claim was asserted because it was susceptible of an in-

terpretation which could harm the reputation of plain-

tiffs. Thus, he rejected defendants’ claim that the article

was not defamatory. We agree with the trial court. Nuyen

v. Slater, 372 Mich. 654, 662; 127 N.W. 2d 369 (1964);

lacco v. Bohannon, 70 Mich. App. 463; 245 N.W. 2d 791

(1976), leave denied, 399 Mich. 846 (1977); 3 Restatement

of Torts, § 559, p. 140. (emphasis added).

Plaintiffs herein also rely upon the following additional Mich-

igan Supreme Court cases in general support of their three

efamation counts: Kenney v. Hatfield, 351 Mich. 498, 512; 88

N.W. 2d 535 (1958) (‘a publication imputing impairment of

mental facilities is libel per se”); Sanders v. Evening News

Ass’n., 313 Mich. 334, 343; 21 N.W. 2d 152 (1946) (defendants’

publication must be “fairly and reasonably construed”); Hysko

v. Polonia Publishing Co., 239 Mich. 676, 681; 215 N.W. 3

(1927) (The words are to be taken in the sense in which they

would be understood by those who read them.”); Moore v.

Booth Publishing Co., 216 Mich. 653, 656, 185 N.W. 780 (1921);

Lonkhuyzen v. Daily News Co., 195 Mich. 283, 295; 161 N.W.

979 (1917); Simons v. Burnham, 102 Mich. 189, 195-97 (1894)

(“leaving to the jury . . . the question of the meaning”); Ed-

wards v. Chandler, 14 Mich. 471, 476; 90 Am. Dec. 249 (1866)

(“[W]Je are not prepared to say that a jury could not draw

such an inference without reasonably stretching or perverting

the sense. Such language must be construed by the jury, and

not by the court.”).

27Memphis Publishing Co. v. Nichols, 569 S.W. 2d 412,

419-420 (Tenn. 1978) (‘Whether the news article ... was...

understood by readers in its defamatory sense is ultimately

a question for the jury. * * * In our opinion, the defendant's

reliance on the truth of the facts stated in the article in ques-

tion is misplaced. The proper question is whether the mean-

ing ow conveyed by the published words is defama-

tory.”’).

*8Fleckenstein v. Friedman, 266 N.Y. 19, 23; 193 N.E. 537,

538 (1937) (“whether the libel as published would have a dif-

ferent effect on the mind of the reader from that which the

pleaded truth would have produced”).

°Brown v. First National Bank, 193 N.W. 2d 547, 553 (lowa

1972) (truth is available as an absolute defense only when the

defamatory meaning conveyed by the words is true).

isiana,*° Massachusetts! California,? Alabama, Dela-

ware,** Florida,’ and South Carolina**—had any chilling

effect whatsoever on any person; defendants offer no sup-

port for such a preposterous contention.

4. The state court’s decision in this case

was consistent with Michigan law.

Michigan law favors decision-making by the trier of

fact (judge or jury) at the time of trial; conversely, Mich-

30Schaefer v. Lynch, 406 So. 2d 185, 188 (La. 1981) (“A

defamatory meaning is insinuated. When truthful statements

carry a defamatory innuendo, the implication should also be

true to justify publication. [T]ruthful statements which carry

a defamatory implication can be actionable.”’).

31Mikhalik v. Duprey, 417 N.W. 2d 1238, 1239 (Mass. App.

1981); Tropeano v. Atlantic Monthly Co., 379 Mass. 745; 400

N.E. 2d 847 (1980).

3?See, e.g., Howard v. Southern California Ass’d Newspa-

pers, 95 Cal. App. 580; 213 P. 2d 399 (1950), overruled in part

on other grounds sub nom., Field Research Corp. v. Superior

Court, 77 Cal. Rptr. 243; 453 P. 2d 747 (1969) (scope of Cali-

fornia punitive damages statutes); Harris v. Curtis Publishing

Co., 49 Cal. App. 2d 340; 121 P. 2d 761 (1942).

33Marion v. Davis, 217 Ala. 16, 18; 114 So. 357, 359 (1927)

(words are equally actionable if the defamatory charge is made

indirectly or by necessary inference, no matter how artfully

disguised).

Rice v. Simmons, 2 Harr. (Del.) 417, 433; 31 Am. Dec.

766 (1839) (“The character of a libel is to be judged by the

effect it produces on the mind, ... and . . . may depend much

upon inferential reasoning.”).

38Caldwell v. Cromwell-Collier Publishing Co., 161 F. 2d

333, 335-36 (5th Cir.) (applying Florida law to a nationwide

publication), cert. denied, 332 U.S. 766 (1947).

ssDuncan v. The Record Publishing Co., 145 S.C. 196; 143

S.E. 31 (1927) (“[1]t does not follow that such literal truth was

a complete defense, as appellants contended. * * * [T]he pub-

lication, literally true as it was, was intended to convey and

conveyed to readers thereof the defamatory meaning attrib-

uted thereto... .”).

igan law generally disfavors summary dismissal of civil

cases prior to trial.

This philosophy is embodied in part in Michigan Gen-

eral Court Rule 117.2(3), which precludes the granting

of summary judgment as requested by defendants in the

trial court unless procedurally defendants attach an ap-

propriate factual supporting aifidavit to their motion

for summary judgment*’ and unless substantively defend-

ants demonstrate that (1) there exists no genuine issue

of material fact and (2) defendants are therefore en-

titled to judgment as a matter of law.**

In this case, defendants failed to meet all three proce-

dural and substantive requirements. In fact, defendants

failed to meet even one of these requirements.

Defendants did not submit the required affidavit.

Defendants did not demonstrate that the jury could not as

a matter of law determine that the portrayals, implica-

tions, imputations, and insinuations plainly generated by

defendants’ articles were both defamatory and false, par-

ticularly in light of plaintiffs’ own factual affidavits that

they were not members of the Mafia.

Summary judgment was therefore properly denied

by the trial court.

For the same reasons, the Michigan Court of Appeals

properly affirmed the trial court’s denial of summary

judgment.

37MICH. GEN. CT. RULE 117.3.

388MICH. GEN. CT. RULE 117.2(3).

Clearly, from plaintiffs’ attachment of each defama-

tory article to plaintiffs’ Complaint and from plaintiffs’

answers to defendants’ fourth set of interrogatories to

plaintiffs, as well as from plaintiffs’ five previous ap-

39Answering defendants’ Fourth Set of Interrogatories,

plaintiffs stated on February 24, 1984, in pertinent part that:

In regard to Interrogatory 1(a), plaintiffs, JOSEPH JU-

DEUS LOCRICCHIO and GARY FRANCELL, state that they

have been advised by their attorneys that the defamation

allegations contained in said Complaint are not necessarily

based on a false statement(s) in any one particular article,

but, rather, that the entire series of articles, in their en-

tirety, injured the reputations of plaintiffs as the same rep-

resented a false portrayal, implication, imputation, and/or

insinuation that plaintiffs, among other things, are or were

members and/or associates of an organized criminal soci-

ety, otherwise known as the “Mafia”; individuals of low

moral and character; that the plaintiffs knowingly and pur-

posely engaged, participated and/or authorized financial

agreements and/or arrangements of a questionable nature

and/or legality and that the plaintiffs’ names and reputa-

tions were unjustifiably associated with other criminal con-

duct and/or activity of a reprehensible nature.

As the article or articles, and the information contained

therein, forms the basis for plaintiffs’ libel allegations, the

defamatory impact of the same cannot be dissected and

articulated into solitary phrases or sentences. Rather, the

full portrayal, implication, imputation and/or insinuation

can only be ascertained by viewing the articles, as they

are presently known to plaintiffs, in conjunction with each

other. Viewing the articles in the aforesaid fashion, the

defamatory nature of the same becomes self-evident. (em-

phasis added).

If this Court has not already done so, and if this Court retains

any question about the defamatory nature of these articles, the

Court is directed to review the actual articles published by

defendants.

pellate briefs in the courts below, defendants have had

adequate and repeated notice, dating to April 3, 1981, that

plaintiffs intended to hold defendants accountable for

their defamatory and false portrayals, insinuations, im-

putations, and implications of and regarding plaintiffs.

There should be no surprise, no ignorance as to these al-

legations; each has been clearly submitted to defendants

through their counsel. For defendants to now claim some

lack of requisite notice of plaintiffs’ claims is ridiculous;

defendants’ “high-brow” Fourteenth Amendment argu-

ment is not on point and fails to cite any case which ac-

curately supports its position.

Furthermore, by implication, defendants seek to in-

validate the very procedural rule they sought to invoke

in their motion for summary judgment, Michigan General

Court Rule 117.2(3); having failed to rewrite established,

proper, and constitutional Michigan and recognized na-

tionwide common law with their motion, defendants now

seek to carve out some defamation exception to the Mich-

igan procedural rule (which is virtually identical to the

operative language approved by this Court in Federal

Rule of Civil Procedure 56(¢c)) they earlier sought to

employ. No grounds whatsoever, except ungracious rec-

ognition of the fact that defendants will be judged by a

40Plaintiffs’ July 2, 1982, Response in Opposition to De-

fendants’ Application for Leave to Appeal (Michigan Court of

Appeals); plaintiffs’ January 26, 1983, Brief on Appeal (Michigan

Court of Appeals); plaintiffs’ September 12, 1983, Response in

Opposition to Defendants’ Motion for Rehearing (Michigan

Court of Appeals); plaintiffs’ December 12, 1983, Response in

Opposition to Defendants’ Application for Leave to Appeal

(Michigan Supreme Court); and plaintiffs’ May 23, 1984, Re-

sponse in Opposition to Defendants’ Vexatious Motion for

Reconsideration (Michigan Supreme Court).

jury of their peers for their unexcusable defamatory

statements, has been set forth for action by this Court.

This Court must not condone this type of unsupported—

and unsupportable—attempt to rewrite both established

defamation law and recognized and fair procedural de-

vices to resolve factual disputes.

For these reasons, defendants’ Petition must be de-

nied.

5. The state court’s decision in this case

was consistent with earlier decisions

of the federal court of appeals.

While this Court’s Rule 17.1(b) indicates that a deci-

sion in conflict with the decision of a federal court of ap-

peals may present grounds for granting a writ of cer-

tiorari, it is clear that applicable federal court of ap-

peals decisions actually support the treatment provided

this matter by the Wayne County Circuit Court and the

Michigan Court of Appeals.

Initially, plaintiffs note that defendants rely upon

but one case from a federal court of appeals, Wilson v.

Scripps-Howard Broadcasting Co.*' Defendants, how-

ever, again misleadingly rely upon Wilson for overbroad

application. A fair—and correct—reading of Wilson re-

veals that Wilson is yet another post-verdict (not sum-

mary judgment) case, and therefore has very limited ap-

plication to this case. Wilson stands for the proposition,

after Gertz v. Robert Welch, Inc.,” that the First Amend-

41642 F. 2d 371 (6th Cir.), cert. granted, 454 U.S. 962 (1981)

(settled prior to oral argument).

42418 U.S. 323 (1974) (Gertz 1).

ment requires the plaintiff in a libel case to prove fault

(fault may not be presumed), and as a consequence, plain-

tiff has the burden of proof to prove falsity as well as

defamatory content. Plaintiffs herein accept that burden

and anticipate imposing liability based upon fault at trial

in this case. Accordingly, the trial court’s decision is com-

pletely consistent with Wilson.*

Plaintiffs rely further upon Caldwell v. Crowell-Col-

lier Publishing Co™ in support of the trial court’s dis-

position of defendants’ second motion for summary judg-

ment. In Caldwell, the Fifth Circuit reversed the trial

court’s dismissal of plaintiff’s suit based upon failure to

state a claim, stating in pertinent part that:

A libel is a compound of written falsity and malicious

publication, but the falsity may consist in untrue im-

putation as well as a direct statement, and malice

may be inferred from the nature of the charges made.

False timputations may be actionable per se, that is in

themselves, or per quod, that is on allegation and

proof of special damages.

It is not necessary that the false charges be made in

a direct manner, if the words in their ordinary mean-

ing convey it, and an imsinuation is as actionable as

a positive assertion if the meaning is plain.**

Once again, Caldwell supports lower court treatment of

this matter.

43Plaintiffs do not speculate as to the meaning, if any, to

be ascribed to this Court’s decision to grant certiorari in Wil-

son, supra at n. 41.

“See n. 35 supra.

4SId. (emphasis added).

Thus, defendants fail to demonstrate any conflict with

the decision of any federal court of appeals; to the con-

trary, both the Fifth and Sixth circuits have treated fed-

eral defamation actions in the same or similar fashion

as this defamation action has been treated by the Michi-

gan courts.

Accordingly, no ground for certiorari exists under

this Court’s Rule 17.1(b), and defendants’ Petition must

be denied.

6. The state court’s decision in this case

is consistent with earlier decisions of

this Court.

Contrary to defendants’ assertions, the lower conrt

treatment of this matter has been completely consistent

with earlier decisions of this Court.

As noted above, defendants’ excessive reliance on

post-trial eases such as Postill, Gaynes, New York Times,

Gertz, and Curtis Publishing® is regrettable. Further,

defendants’ inappropriate and overnarrow interpretation

of “statement”, overlooking defendants’ clear message

that plaintiffs were members of the Mafia, makes defend-

ants’ cited Garrison v. Louisiana,” State v. Burnham,"

and Letter Carriers v. Austin*® cases similarly inappro-

priate. None of these cases are inconsistent with this

case.

46See nn. 14-23 & accompanying text supra.

47379 U.S. 64 (1964).

489 N.H. 34 (1837).

49418 U.S. 264 (1974).

Similarly, defendants’ self-impressive due process

argument conveniently ignores the notice repeatedly given

by plaintiffs and received by defendants regarding plain-

tiffs’ defamation allegations against defendants.© De-

fendants have been and are clearly on notice that plaintiffs

intend to prove at trial that defendants published to third

persons unprivileged defamatory and false statements of

and concerning plaintiffs (or if subsequently found to be

privileged, that same were published with “actual mal-

ice”).*' Accordingly, defendants’ due process authorities,

including NAACP v. Burton, Gooding v. Wilson,? and

Winters v. New York® are clearly inapplicable, nothwith-

standing the requisite fact of absence of any alleged un-

constitutional statute.

On the contrary, the handling of this matter by the

Michigan courts to date is consistent with federal author-

ities including Gertz; even at this pretrial stage, it is clear

that no liability will be imposed on defendants absent

proof of fault at trial.

Thus, in this case, no state court has decided a fed-

eral question in conflict with any applicable decision of

this Court; certiorari is therefore disfavored under this

Court’s Rule 17.1(c) and should be denied.

5°See nn. 39-40 and accompanying text supra.

51See, e.g., Sanders v. Evening News Ass’n., 313 Mich. 334,

340; 21 N.W. 2d 152 (1946); Jones v. Schaeffer, 122 Mich. App.

301, 304; 332 N.W. 2d 423 (1982).

52371 U.S. 415 (1963).

53405 U.S. 518 (1971).

54333 U.S. 507 (1948).

7. This case presents no unsettled im-

portant question of federal law which

has not been, but should be, settled

by this Court.

As noted above, the Michigan courts below properly

handled defendants’ second motion for summary judg-

ment, consistent with Michigan procedural and substan-

tive law, consistent with common law in at least 10 other

states, consistent with an earlier decision of the Fifth

Cireuit Court of Appeals, consistent with this Court’s ear-

lier decision in Gertz, and not inconsistent with any deci-

sion of the Sixth Circuit, any other circuit, or this Court.

Particularly in this pretrial posture and particularly

in light of defendants’ inability to cite any case or other

authority in actual support of their position—either in

the trial court on April 2, 1982, or in this Court today,

there exists no reason whatsoever for this Court to now

consider a heretofore settled question of federal law.

Accordingly, certiorari is disfavored under this

Court’s Rule 17.1(c) and should be denied.

CONCLUSION

Defendants’ Petition for Writ of Certiorari sets forth

(and there exists) no basis for this Court to grant cer-

tiorari in this matter, including but not limited to pur-

suant to this Court’s Rule 17.1(b) and/or 17.1(c).

Furthermore, defendants’ Petition is materially er-

roneous and misleading and should be denied pursuant to

this Court’s Rules 17 and 21.5.

For these reasons, plaintiffs respectfully pray and

ask that defendants’ Petition for Writ of Certiorari to the

Supreme Court for the State of Michigan be denied.

Respectfully submitted,

Kircu, SUHRHEINRICH,

Saursier & Drutcuas, P.C.

BY: Jeremian J. Kenney (P 24810)

Attorneys for Respondents

2000 Buhl Building

Detroit, Michigan 48226

(313) 964-5890

DATED: October 17, 1984

App. 1

APPENDIX A

STATE OF MICHIGAN

IN THE COURT OF APPEALS

Court of Appeals

No.: 64729

JOSEPH JUDEUS LOCRICCHIO and

GARY FRANCELL,

Plaintiffs-Appellees,

THE EVENING NEWS ASSOCIATION, INC., a Mich-

igan Corporation, PETE WALDMEIR, BILL GILES,

JEFF LADERMAN, MICHAEL F. WENDLAND, JEAN

GADOMSKI, RICHARD WILLING, ROBERT ANK-

ENY, and JIM GRAHAM, jointly and severally,

Defendants-Appellants.

Wayne County Cireuit Court

No.: 80-012145 CZ

PLAINTIFFS’ BRIEF ON APPEAL

AFFIDAVIT OF COUNSEL

AFFIDAVIT OF SERVICE

ORAL ARGUMENT REQUESTED

Kitcu, SUHRHEINRICH, SMITH,

SaurBierR & Drutcuas, P.C.

By: SrepHen M. Kettey (P33197)

Attorneys for Plaintiffs

2000 Buhl Building

Detroit, Michigan 48226

(313) 964-5890

App. 2

TABLE OF CONTENTS

Pages

INDEX OF AUTHORITIES i

COUNTER-STATEMENT OF QUESTIONS PRE-

SENTED iv

COUNTER-STATEMENT OF FACTS v

ARGUMENT 1

I DEFENDANTS, AFTER FAILING TO SEEK

TIMELY REHEARING OR APPEAL, ARE

NOW PRECLUDED FROM RAISING ON IN-

TERLOCUTORY APPEAL AN ALLEGATION

THAT “PLAINTIFFS HAVE FAILED TO

STATE A CAUSE OF ACTION FOR LIBEL” 1

Il. DEFENDANTS FAILED TO COMPLY WITH

THE REQUIREMENTS OF GCR 1963,117.2(3),

WHEN PRESENTING THEIR SECOND MO-

TION FOR SUMMARY JUDGMENT, AND

THEREFORE, THE TRIAL COURT PROP-

ERLY DENIED DEFENDANTS’ MOTION .... 3

Ill. THE TRIAL COURT’S FINDING WAS SUP-

PORTED BY THE RECORD BEFORE IT... 6

SUMMARY : 19

RELIEF REQUESTED 21

INDEX OF AUTHORITIES

CASE LAW

Brown v. First National Bank, 193 NW2d 547, 553

(Iowa 1972) 8

Caldwell v. Crowell-Collier Publishing Co, 161

F2d 333, 335-336 (CA 5), cert denied, 332 US

766, 68 SCt 74, 92 LEd 51 (1947) 10

Dale v. Whiteman, 388 Mich 698, 202 NW2d 797

(1972) 1

App. 3

Dawson v. Wright, 8 Med L Rptr 2001, 2002 (Oak-

land County Cireuit Court No. 80-206224, de-

cided April 30, 1982)

DeMare Bros Constr Co, Inc v. Teska, 49 Mich

App 642, 212 NW2d 602 (1973)

Duncan v. The Record Publishing Co, 145 SC 196,

143 SE 31 (1927)

Edwards v. Chandler, 14 Mich 471, 476, 90 Am Dee

249 (1866)

Field Research v. Superior Court, 7 Cal Rptr 246,

453 P2d 750 (1969)

Fleckenstein v. Friedman, 266 NY 19, 23, 193 NE

537, 538 (1937)

Gertz v. Robert Welch, Inc, 418 US 323, 94 SCt

2997, 41 LEd2d 789 (1974)

Harris v. Curtis Publishing Co., 49 Cal App 2d

340, 121 P2d 761 (1942)

Hayes v. Booth Newspapers, Inc, 97 Mich App

758, 295 NW2d 858 (1980)

Howard v. Southern California Associated News-

papers, 95 Cal App 2d 580, 213 P2d 399 (1950) .....

Hysko v. Polonia Publishing Co, 239 Mich 676,

681, 215 NW 8 (1927)

Kenney v. Hatfield, 351 Mich 498, 512, 88 NW2d

535 (1958)

Marion v. Davis, 217 Ala 16, 18, 114 So 357, 359

(1927)

McLaughlin v. Consumers Power Co, 52 Mich App

663, 666, 218 NW2d 122 (1974)

Mikhaltk v. Duprey, 417 NE2d 1238, 1239 (Mass

App 1981)

Nuyen v. Slater, 372 Mich 654, 662, 127 NW2d 369

(1964)

App. 4

Orr v. Argus-Press, 586 F2d 1108 (CA 6 1978),

cert. denied, 440 US 960, 99 SCt 1502, 59 LEd2d

773 (1979) 16, 17

Peck v. Auto Owners Ins Co, — Mich App —, —

NW2d — (1982) +

Peisner v. Detroit Free Press, 82 Mich App 153,

164, 226 NW2d 693 (1978) a

Rice v. Simmons, 2 Harr (Del) 417, 433, 31 Am

Dee 766 (1839) 10

Rizzo v. Kretschmer, 389 Mich 363, 370-374, 207

NW2d 316 (1973) 6

Sanders v. Evening News Ass’n, 313 Mich 334, 348,

21 NW2d 152 (1946) | 14

Schaefer v. Lynce, 406 So2d 185, 188 (La 1981) 00. 9

Schultz v. Reader’s Digest Ass’n, 468 FSupp 551,

554 (ED Mich 1979) 11

Simons v. Burnham, 102 Mich 189, 195-197 (1894) 13, 14

Superior Prod v. Merucct Bros, 107 Mich App

153, 309 NW2d 188 (1981) 16

Tropeano v. Atlantic Monthly Co, 379 Mass 745,

400 NW2d 847 (Mass 1980) 9

Turner v. Brien, 184 Iowa 320, 326, 167 NW 584,

586 (1918) . . 10

Van Lonkhuyzen v. Daily News Co, 195 Mich 283,

295, 161 NW 979 (1917) ‘ 13

Williams v. Hicks Printing Co, 159 Wise 90, 150

NW 183, 188 (1914) 11

Wilson v. Scripps-Howard Broadcasting Co, 642

F2d 371 (CA 6), cert. granted, 454 US 962, 102

SCt 500, 70 LEd2d 377 (1981) 16, 17

Wynglass v. Prudential Life Ins Co, 68 Mich App

514, 516, 242 NW2d 824 (1976) 6

App. 5

Zbyseko v. New York American, Inc, 228 App Div

277, 239 NYS 411 (1930)

STATUTES AND COURT RULES

GCR 1963, 116.4

GCR 1963, 117.2(1)

MCLA 600.2911(1)

OTHER AUTHORITIES

1 Honigman & Hawkins, 1982 Supp, p 145

Gatley, Libel € Slander (4th ed 1953), pps 18-21

33 Am Jur, Libel and Slander, $45, 9, 45

ween neeenene

Prosser, Torts (4th ed 1971), $111

Spiegel, Defamation by Implication—In the Con-

fidential Manner, 29 So Cal L Rev 306 (1956)

App. 6

~ COUNTER-STATEMENT OF

QUESTIONS PRESENTED

WHETHER DEFENDANTS, AFTER WAIVING ALL

RIGHTS TO REHEARING AND/OR APPEAL, MAY

ARGUE THAT “PLAINTIFFS HAVE FAILED TO

STATE A CAUSE OF ACTION FOR LIBEL’’?

The trial court did not consider whether defendants

waived their right to appeal the 1981 denial of defend-

ants’ motion for summary judgment pursuant to GCR

1963, 117.2(1).

Plaintiffs answer ‘‘No”’.

WHETHER THE TRIAL COURT PROPERLY DE-

NIED A SUMMARY JUDGMENT MOTION BROUGHT

PURPORTEDLY PURSUANT TO GCR 1963, 117.2(3),

WHEN THAT MOTION WAS NOT SUPPORTED BY A

PROPER AFFIDAVIT?

The trial court did not need to reach this question but

reached the right result for another reason.

Plaintiffs answer ‘‘Yes’’.

WHETHER PLAINTIFFS’ AFFIDAVITS, PLEAD-

INGS AND OTHER MATERIALS SUPPORTED THE

TRIAL COURT’S FINDING, PARTICULARLY

WHERE DEFENDANTS’ MOTION FOR SUMMARY

JUDGMENT PURSUANT TO GCR 1963, 117.2(3), WAS

UNSUPPORTED BY A PROPER AFFIDAVIT?

The trial court answered ‘‘Yes’’.

Plaintiffs answer ‘‘ Yes”.

COUNTER-STATEMENT OF FACTS

Due to defendants’ continued and blatant disregard

for the truth, including at a minimum the publications

App. 7

which form the basis of this litigation and the pur-

ported ‘Statement of Facts” contained in defendants’

Appellants’ Brief on Appeal, plaintiffs submit the

following Counter-Statement of Facts:

Pursuant to editorial decision-making, numerous de-

famatory articles regarding plaintiffs were published by

The Detroit News, written by various Detroit News re-

porters, columnists, editors, and staff writers. Among

these writers were Michael F. Wendland and Genevieve

Gadomski. Despite repeated imputations, insinuations,

implications, and portrayals by The Detroit News that

plaintiffs were members of the so-called ‘‘Mafia’’ or some

other organized crime groups—including articles to that

effect by defendants Wendland and Gadomski—defend-

ants Wendland and Gadomski have testified that they

never substantiated their published imputations, insinua-

tions, implications, and portrayals. Plaintiffs have al-

leged and will prove that these published imputations, in-

sinuations, implications and portrayals are, in fact, false.

Highlighting the fact that defendants knowingly pub-

lished articles capable of defamatory interpretation is de-

fendant Wendland’s own deposition testimony:

Q. (by plaintiffs’ counsel)

In January or February of 1979 you again were

asked to do some investigation into Pine Knob,

correct?

(Mr. Wendland)

That is correct.

And from whom, if anyone, did you get that as-

signment?

That assignment came specifically from Bill Lutz.

Do you know how or why that assignment again

was generated?

App. 8

I think that it was, as I recall, I sat down in his

office and we discussed a number of projects that

I would be working on and at that time he felt

that I should concentrate my efforts into the

Pine Knob story.

Did he tell you why

Well, Pine Knob, as I recall, he had heard these

rumors, and Pine Knob is certainly now and was

then the premier entertainment complex in this

area. It was a fascinating story and those ru-

mors were widespread enough that he felt it was

in our interest, the newspaper’s interest. to look

into it. That’s what our job is.

When you say it was in the newspaper’s interest

to look into it, what do you mean by that?

It’s the newspaper’s job to report the news and

the Pine Knob stories and those rumors were cer-

tainly news. There is a little sign up on the top

of the Detroit News Building with engraved

stone that kind of says, I guess, what the news-

paper is supposed to do and one of the things is

the mirror of the public eye.

Well, what about rumors makes it news?

Well, when rumors are widespread, as they cer-

tainly were in this case, a newspaper’s job and

role in the community is to try and sort out the

rumors from the truth.

Mr. Wendland, did you ever get—strike that.

Were you ever able to separate the rumor

from the truth about organized crime involvement

in Pine Knob, to your satisfaction?

Yeah, to my satisfaction I believe so.

And what was that separation?

oP ©

App. 9

I don’t believe there is any organized crime in-

volvement in the ownership of Pine Knob.

Was that your feeling before these articles ap-

peared, sir?

I had no feeling. I didn’t know.

After you began your investigation and at the

completion of your investigation but while you

were writing the articles, was that your feeling,

that there was no organized crime involvement in

Pine Knob?

Yes.

That’s what your investigation had shown to your

satisfaction at least?

Yes. I was satisfied that I coule not say that

Pine Knob was an organized crime business. It

was not provable that I could find. I don’t be-

lieve that there was any.

(Wendland deposition, p. 15, line 6—p. 16, line 22; p. 47,

line 23—p. 48, line 18) (emphasis added). Ms. Gadom-

ski’s deposition is equally illustrative:

(by plaintiffs’ counsel)

Were you aware prior to beginning your investi-

gation that led into these stories that you were

looking into rumors that there was organized

crime involved with Pine Knob?

(Ms. Gadomski)

Yes.

Who made you aware of that?

I don’t know. They were floating around.

I asked you, though, whether you were told prior

to beginning your research that you were looking

into rumors specifically that organized crime was

involved in Pine Knob?

App. 10

A. Yes.

Q. And who informed you of that?

A. Bill Lutz.

Q. Do you feel that your research and investigation

that you performed in relation to this Pine Knob

Story substantiated that there is organized crime

involvement at Pine Knob?

A. No.

Q. Butif I understand your testimony correctly, you

indicated that your research and investigation

did not show that there was any organized crime

involvement at Pine Knob?

A. We couldn’t substantiate it.

Q. Did you report your findings to anyone at the

Detroit News?

A. Not to any individual, no.

(Gadomski deposition, p. 29, line 14—p. 30, line 4; p. 360,

lines 14-19).

Notwithstanding the fact that defendants’ own inves-

tigation disclosed that Pine Knob was not ‘‘an organized

crime business’’ and found no substantiation for the belief

that Pine Knob had organized crime involvement, defend-

ants went ahead with their series of articles on Pine Knob

linking plaintiffs with the murder of Harvey Leach, head

of the Joshua Doore furniture store chain, and a second

murder, as well as assorted other organized crime and

‘‘Mafia” figures.

Accordingly, after a due demand for retraction was

made pursuant to MCLA 600.2911; MSA 27A.2911 and re-

jected, plaintiffs instituted this litigation on or about

App. 11

April 3, 1980, alleging, among other things, that these

articles were libelous.

On or about April 30, 1981, defendants filed an initial

motion for summary judgment, pursuant to GCR 1963,

117.2(1), claiming in part that the libel allegations con-

tained in plaintiffs’ Complaint failed to state a claim

upon which relief could be granted, allegedly because de-

fendants failed to specify the alleged libelous statements.

The circuit court denied defendants’ motion for sum-

mary judgment on plaintiffs’ libel counts on the basis that

the requirement that the content of the allegedly libelous

information be set forth in the Complaint was satisfied

by plaintiffs’ attachment of the subject articles to their

Complaint (an amended complaint was filed on or about

March 17, 1982; the libel allegations in both the original

and amended complaint are identical; the same articles

were also attached to the amended complaint). No motion

for rehearing, much less an application for leave to ap-

peal to this Court, was ever filed by defendants regarding

the trial court’s denial of defendant’s GCR 1963, 117.2(1),

motion for summary judgment.

After defendants filed their initial motion for sum-

mary judgment, defendants submitted three sets of inter-

rogatories on or about August 8, 1981, August 24, 1981,

and September 4, 1981, regarding three of the subject De-

troit News articles. Defendants submitted an identical

interrogatory, containing six subparts, on each of the 258

sentences contained in these three articles. The circuit

court, recognizing that defendants had, in essence, sub-

mitted 1,548 interrogatories in less than a month, upheld

plaintiffs’ objections to these interrogatories. However,

App. 12

the circuit court suggested that defendants redesign their

interrogatories to relate to the articles as a whole:

Well, why don’t you ask them on the article as a

whole?... If you want to revise your interrogatories

to ask them the same question dealing with the ar-

ticles as a whole, fine, I will order them to answer it

. . So I would be perfectly happy to make them an-

swer it as a whole.

(Hearing transcripts, pps. 6-7).

Defendants later filed a fourth set of interrogatories

which plaintiffs subsequently answered. Plaintiffs’ an-

swers to defendants’ fourth set of interrogatories re-

flected that plaintiffs’ claims were not necessarily based

on a particular false statement but that the entire series

of articles falsely portrayed, insinuated, imputed and/or

implied that plaintiffs, among other things, were members

and/or associates of an organized criminal society other-

wise known as the “Mafia”.

After receiving these answers to interrogatories, and

after apparently misreading the clear language of these

answers, defendants once again moved for summary

judgment, this time pursuant to GCR 1963, 117.2(3) (no

genuine issue as to any material fact), but without a prop-

er supporting affidavit, as noted in plaintiffs’ Brief in

Response to Defendants’ Motion for Summary Judgment

as to Plaintiffs’ Libel Claims, at p. 2-3. Defendants ap-

parently proceeded on the theory that plaintiffs were re-

quired to establish that a particular sentence in a partic-

ular article was ‘‘factually false’’.

The circuit court denied defendants’ second motion

for summary judgment on the basis that the ‘‘factual

falsity” requiremert was not limited to direct statements

a -——

App. 13

but that it also pertains to implications, imputations and

insinuations, the trial court’s denial of this second motion

was caused, at least in part, by defendants’ inability to

cite one case in support of defendants’ position.

Following defendants’ reliance at oral argument on

the case of Schultz v. Keader’s Digest Ass’n, 468 F Supp

551 (ED Mich 19), the trial court stated:

THE COURT: I read the case. Don’t bother going

into it. I just read it.

THE COURT: I don’t think the Hoffa case [Schultz]

is on point at all, because in the Hoffa case the

judge was making a ruling as a matter of law that

plaintiff would not be able to show actual knowl-

edge for reckless disregard. This issue is not

before this court.

* * *

THE COURT: In the Schultz case I think there is

definitely language that goes against your case.

On page five fifty-four the court goes into a long

discussion of if words are susceptible of different

interpretations it’s for the jury to say whether

or not they were defamatory. There’s a whole

long discussion about this.

THE COURT: The tenor of the articles could be

interpreted as false. Implying that this is a

Mafia member. Implying that they are crim-

inals. The whole tenor of it. I think that is

what we have been talking about with all these

motions. The tenor of the articles.

App. 14

MR. STEWART (defendants’ counsel) :

I will say to you today, for the purpose of this

argument I agree. For the purpose of this argu-

ment it’s capable of defamatory interpretation.

Let’s assume we all agree.

(April 2, 1982, hearing transcript, p. 4, lines 24-25; p. 5,

lines 12-16; p. 6, lines 9-14; p. 8, lines 18-22; p. 15, lines

13-16).

Defendants failed to cite any case other than the

Schultz case to the trial court on oral argument of their

second motion for summary judgment (pursuant to GCR

1963, 117.2(3)). At no time has the trial court found that

plaintiffs are public officials or public figures or that de-

fendants’ unsubstantiated implications concerned a matter

of public interest. The circuit court entered its Order

denying defendants’ motion on April 6, 1982.

After defendants indicated an intent to appeal, the

trial court refused to certify defendants’ proposed con-

trolling question, as defendants had failed to establish

that there existed any authority in support of their po-

sition, and therefore, there was no indication that there

existed any ground for difference of opinion, pursuant to

GCR 1963, 806.3(1) (a) (ii) (certification of controlling

questions of law “as to which there is substantial ground

for difference of opinion”).

Defendants thereafter filed an Application for Leave

to Appeal to this Court, which was opposed by plaintiffs

but granted by this Court on August 3, 1982.

Plaintiffs specifically deny several of the most out-

rageous falsehoods contained in defendants’ purported

“Statement of Facts” in defendants’ Appellants’ Brief on

App. 15

Appeal. First, defendants falsely state that plaintiffs

each have a “conviction for loan fraud”; neither plaintiff

has ever been convicted of loan fraud. Second, contrary

to what defendants know to be the truth, plaintiffs have

never “admitted that the articles contain no false state-

ments of fact”; such misrepresentation merely highlights

defendants’ utter disrespect for both the truth and this

Court, and clearly overlooks the plain, simple and clear

language of plaintiffs’ answers to interrogatories, where-

in plaintiffs’ stated in part that “the entire series of ar-

ticles, in their entirety, injured the reputations of plain-

tiffs as the same represented a false portrayal, implica-

tion, imputation and/or insinuation. .. .” Third, defend-

ants again blatantly misrepresent the truth by stating

that, “[i]n opposing this motion, appellees again admitted

that each and every statement contained in the news re-

ports was true... .” Plaintiffs respectfully suggest that

any reliance which might be placed by this Court on de-

fendants’ purported “Statements of Facts” be undertaken

only after careful and detailed scrutiny and with caution.

ARGUMENT

I. DEFENDANTS, AFTER FAILING TO

SEEK TIMELY REHEARING OR AP-

PEAL, ARE NOW PRECLUDED FROM

RAISING ON INTERLOCUTORY AP-

PEAL AN ALLEGATION THAT ‘‘PLAIN-

TIFFS HAVE FAILED TO STATE A

CAUSE OF ACTION FOR LIBEL”.

Defendants’ initial motion for summary judgment pur-

suant to GCR 1963, 117.2(1), was filed on or about April

App. 16

30, 1981. Under GCR 1963, 117.2(1), defendants in this

case argued that plaintiffs had “failed to state a claim

upon which relief can be granted”. This question—wheth-

er plaintiffs had failed to state a claim—was argued before

the trial court and denied by the trial court. An order

specifically denying summary judgment pursuant to GCR

1963, 117.2(1), was entered by the trial court during 1981.

No motion for rehearing, pursuant to Wayne County Cir-

cuit Court Rule 119.8 or otherwise, was ever filed. No

interlocutory appeal of the denial of defendants motion

pursuant to GCR 1963, 117.2(1), was ever sought, much

less granted. Nowhere in defendants’ June 1, 1982, Ap-

plication for Leave to Appeal to this Court (granted Au-

gust 3, 1982) do defendants assert or allege any basis for

appeal grounded on GCR 1963, 117.2(1).

As this Court has stated time and again, this Court

will not consider those issues [not] properly before it, in-

cluding those issues not preserved for appeal. See, e.g.,

Dale v. Whiteman, 388 Mich 698; 202 NW2d 797 (1972).

Plaintiffs respectfully submit that defendants’ belated at-

tempt to resurrect defendants’ arguments that plaintiffs

have failed to state a cause of action for libel were not pre-

served for appeal due to defendants’ previous acquies-

cence in the trial court’s denial of defendants’ initial mo-

tion for summary judgment and defendants’ failure to as-

sert that non-issue as a ground for appeal at the present

time.

Even at this belated date, defendants apparently fail

to note the clear language of plaintiffs’ May 12, 1982,

Second Amended Complaint, which states at Count I:

(1) “[DJefendants falsely, wickedly and malicious-

ly said of and/or insinuated that plaintiffs ...

App. 17

were persons engaged in organized crime... .”

(paragraph 2); and

(2) “[S]aid publications were false and/or created

false implications. . . .” (paragraph 3).

Thus, plaintiffs’ Second Amended Complaint clearly pleads

false publications and states a claim against defendants.

While plaintiffs respectfully submit that defendants’ be-

lated attempts to resurrect pleading arguments is wholly

improper and untimely, plaintiffs in the alternative re-

spectfully submit that said arguments are entirely moot.

Il. DEFENDANTS FAILED TO COMPLY

WITH THE REQUIREMENTS OF GCR

1963, 117.2(3), WHEN PRESENTING

THEIR SECOND MOTION FOR SUM-

MARY JUDGMENT, AND THEREFORE,

THE TRIAL COURT PROPERLY DE-

NIED DEFENDANTS’ MOTION.

Defendants’ second motion for summary judgment,

dated March 12, 1982, is expressly brought based upon

the provisions of GCR 1963, 117.2(3), “that except as to

the amount of damages there is no genuine issue as to

any material fact, and the moving party is, therefore, en-

titled to judgment as a matter of law”.

Defendants, however, overlooked the crystal clear

mandatory language of GCR 1963, 117.3, which states in

part:

A motion based upon sub-rule 117. 2(3) shall be sup-

ported by affidavits, and the opposing party prior

to the day of hearing may serve opposing affidavits.

The affidavits submitted by either party shall be

governed by the provisions of sub-rule i16.4, 116.5,

and 116.6. (emphasis added).

App. 18

These sub-rules, and GCR 1963, 116.4, in particular, state

in part:

Supporting and opposing affidavits shall be made on

personal knowledge and shall set forth with partic-

ularity such facts as would be admissible as evidence

to establish or deny the grounds stated in the plead-

ing or motion. Such affidavits shall show affirma-

tively that the affiant, if sworn as a witness, can tes-

tify competently to the facts contained therein.

Contrary to these unambiguous rules, defendants failed

to submit a proper affidavit in support of their second

motion for summary judgment. The sole affidavit at-

tached te defendants’ second motion for summary judg-

ment (other than the Proof of Service) stated only:

“James E. Stewart, being first duly sworn, states as

follows:

1. That he is a partner in the firm of Butzel Long

Gust Klein & Van Zile, attorneys for all defendants

except Gene Grudi in the above case;

2. That he has read the within Motion for Summary

Judgment as to Plaintiffs’ Libel Claims, and the con-

tents are true and accurate to the best of his knowl-

edge and belief, except as to those matters therein

stated to be upon information and belief, and as to

those matters, he believes them to be true.” (empha-

sis added).

Plaintiffs respectfully submit that Mr. Stewart’s affi-

davit failed to comply with the clear requirements of GCR

1963, 116.4, 117.2(3) and 117.3. Further, this defect was

succinctly raised in the trial court in plaintiffs’ Brief in

Response to Defendants’ Motion for Summary Judgment

as to Plaintiffs’ Libel Claims, at pp 2-3. The importance

of a meaningful affidavit has been repeatedly recognized

in the context of motions for summary judgment pursuant

App. 19

to sub-rule 117.2(3). See, e.g., 1 Honigman & Hawkins,

1982 Supp, p 145 (“The supporting affidavit, which must

be filed with such a motion, identifies those facts which

may appear to be controverted in the peadings but which,

the mover asserts, cannot be genuinely disputed.”) (em-

phasis added); Hayes v. Booth Newspapers, Inc, 97 Mich

App 758, 295 NW2d 858 (1980) (granting sub-rule 117.2(3)

motion without proper supporting affivadit will result

in per se reversal); DeMare Bros Constr Co Inc v Teska,

49 Mich App 642, 212 NW2d 602 (1973) (same). See also,

1 Honigman & Hawkins, 1982 Supp, p 147 (affivadits by

attorney for movant based upon “best of information and

belief” do not conform with sub-rule 117.3 and 116.4);

Peck v Auto Owners Ins Co, 112 Mich App 329; 315 NW

2d 586 (1982) (same).

Therefore, under the clear mandatory language of the

General Court Rules, as interpreted by this Court in both

Hayes and DeMare Bros. Constr. Co., Inc., supra, defend-

ants failed to comply with the requirements of GCR 1968,

117.2(3), when presenting their second motion for sum-

mary judgment, and therefore, the trial court properly

denied defendants’ motion on this ground alone.

ll. THE TRIAL COURT’S FINDING WAS

SUPPORTED BY THE RECORD BEFORE

IT.

In Peisner v. Detroit Free Press, 82 Mich App 153,

164, 226 NW2d 693 (1978) (Peisner II), this Court set

forth the factors to be considered by a trial court when

considering a motion for summary judgment pursuant to

GCR 1963, 117.2(3):

Motions for summary judgment under GCR 1963, 117.2

(3) are not proper unless no genuine issue as to any

on «

App. 20

material fact remains. In passing on the motion, ben-

efit of every reasonable doubt must be given to the

party opposing the motion. Summary Judgment un-

der this provision is designed to test whether factual

support exists for the claim made. Affidavits, plead-

ings, depositions, admissions, and other documentary

evidence must be considered by the court. Courts are

liberal in finding that a genuine issue does exist, in

order not to infringe upon a party’s right to trial of

disputed factual issues. Rizzo v. Kretschmer, 389

Mich 363, 370-374; 207 NW2d 316 (1973); Wynglass

v. Prudential Life Ins. Co., 68 Mich App 514, 516;

242 NW2d 824 (1976); McLaughlin v. Consumers

Power Co., 52 Mich App 663, 666; 218 NW2d) 122

(1974). (emphasis added)

The thrust of defendants’ second motion for summary

judgment appears to be an argument that no genuine issue

of fact remains simply because plaintiffs allege that de-

fendants’ publications gave rise to false implications, in-

sinuations, imputations and portrayals and that, as a mat-

ter of law and fact, plaintiffs’ claim cannot be sustained.

Plaintiffs respectfully submit that defendants overlook

the vast majority of defamation authorities which, having

considered this question, clearly hold that a defamation

action may be successfully maintained by plaintiffs alleg-

ing false implications, insinuations, imputations and por-

trayals.

A. False Implications, Insinuations, Imputations

and Portrayals are as Capable of Being De-

famatory as are Actual False Statements.

Despite defendants’ inference that false implications,

insinuations, imputations and portrayals are incapable of

defamatory interpretation if contained in an article which

is on its face true, virtually every court which has con-

App. 21

sidered this issue has held that factually accurate words

may be capable of defamatory interpretation.

Considering this same issue, the Supreme Court of

Tennessee in Memphis Publishing Co. v. Nichols, 569 SW2d

412, 419-420 (Tenn 1978), in the context of a defamation

action alleging that defendant newspaper’s factual accu-

rate report gave rise to an implication of an adulterous

relationship, stated in pertinent part:

Whether the news article published by the defendant

newspaper concerning the shooting episode at the

Nichols’ home was, in fact, understood by readers in

its defamatory sense is ultimately a question for the

jury. But preliminary determination of whether the

article is capable of being so understood is a question

of law to be determined by the court. In our opinion,

defendant-newspaper’s motion for a directed verdict

in this case must be resolved in favor of Mrs. Nichols.

When read anc construed in the sense in which the

reader would ordinarily understand it, the clear im-

plication of the article is that Mrs. Nichols and Mr.

Newton had an adulterous relationship and were dis-

covered by Mrs. Newton, thus precipitating the shoot-

ing incident. If so read, it ean hardly be doubted that

Mrs. Nichols’ reputation would be injured.

In this case, the defendant newspaper does not assert

that Mrs. Nichols and Mr. Newton in truth had an

adulterous relationship. Nevertheless, the defendant’s

principal defense is that all material facts stated in

the new article were substantially true, emphasizing

in its brief:

‘IT IS OF CRUCIAL IMPORTANCE TO NOTE

THAT THE RECORD REFLECTS THAT EV-

ERY MATERIAL FACT IN THE ARTICLE

QUOTED ABOVE WAS TRUE.

App. 22

Mrs. Nichols was in fact treated at St. Joseph

Hospital for a bullet wound in her arm after the

shooting. A 40-year old woman was im fact held

by police in connection with the shooting. A shot

was in fact fired at the suspect’s husband. The

suspect did in fact find her husband at the Nich-

ols’ home with Mrs. Nichols. The suspect did

in fact fire a shot at her husband and then at Mrs.

Nichols and did in fact strike her in the arm. No

charges had in fact been placed at the time of

the writing of this article.’

In our opinion, the defendant’s reliance on the truth

of the facts stated in the article in question is mis-

placed. The proper question is whether the meaning

reasonably conveyed by the published words is de-

famatory, ‘whether the libel as published would have

a different effect on the mind of the reader from that

which the pleaded truth would have produced.’ Fleck-

enstein v. Friedman, 266 N.Y. 19, 23, 193 N.E. 537, 538

(1937). The publication of the complete facts could

not conceivably have led the reader to conclude that

Mrs. Nichols and Mr. Newton had an adulterous re-

lationship. The published statement, therefore, so dis-

torted the truth as to make the entire article false

and defamatory. It is no defense whatever that indi-

vidual statements within the article were literally true.

Truth is available as an absolute defense only when

the defamatory meaning conveyed by the words is

true. See Brown v. First National Bank, 193 N.W.

2d 547, 553 (Iowa 1972).

(citations generally omitted) (emphasis as in original).

Other jurisdictions have considered the question of

defamation by implication, insinuation, imputation, and

portrayal, and have adopted the same position as the au-

thorities above. For example, in Schaefer v. Lynch, 406

So 2d 185, 188 (La 1981), the Louisiana Supreme Court

stated in pertinent part:

App. 23

The article is defamatory in the sense that it tends

to diminish the public’s respect for [plaintiff]. <A

defamatcry meaning is insinuated. When truthful

statements carry a defamatory innuendo, the implica-

tion should also be true to justify publication. .. .

Madison v. Bolton, supra, correctly held that truthful

statements which carry a defamatory implication can

be actionable.

(citations omitted). Similarly, the Massachusetts appel-

late courts have considered this issue time and again and

have recognized liability “for what is insinuated as well

as for what is stated expressly.” Mikhalik v. Duprey, 417

NE 2d 1238, 1239 (Mass App 1981) (citing six additional

cases in support). The Massachusetts Supreme Judicial

Court has also recently reiterated that:

The test of whether a publication is defamatory is

whether, in the circumstances, the writing discredits

the plaintiff “in the minds of any considerable and

respectable segment in the community.”

Tropeano v. Atlantic Monthly Co., 379 Mass 745, 400 NW

2d 847 (Mass 1980). A slightly different test has been

used by California courts, namely, what is the probable

effect of a publication upon the mind of the ordinary

reader. See, e.g., Howard v. Southern California Associ-

ated Newspapers, 95 Cal App 2d 580, 213 P 2d 399 (1950),

overruled in part, on different grounds, Field Research

Corp. v. Superior Court, 77 Cal Rptr 243, 453 P 2d 747

(1969) (seope of California punitive damages statute) ;

Harris v. Curtis Publishing Co., 49 Cal App 2d 340, 121

P 2d 761 (1942).

Still other jurisdictions have also held that implica-

tions, insinuations, imputations and portrayals may be

defamatory. In Marion v. Davis, 217 Ala 16, 18, 114 So

App. 24

357, 359 (1927), the Alabama Supreme Court stated in

part:

It is not necessary to render words defamatory and

actionable that they make defamatory charges in di-

rect terms; they are equally actionable if the charge

is made indirectly or by necessary inference, and it

matters not how artful or disguised their meaning is

concealed, if they are in fact defamatory.

The Iowa Supreme Court has observed in Turner v. Brien,

184 Iowa 320, 326, 167 NW 584, 586 (1918), that “it is the

thought conveyed, not the words, that does the harm,”

while the Delaware Supreme Court has similarly noted,

in Rice v. Simmons, 2 Harr (Del) 417, 433, 31 Am Dee 766

(1839), that:

The character of a libel is to be judged of by the effect

it produces on the mind, ... and the attempt to show

in what it consists may depend much on inferential

reasoning.

Finally, as noted in the trial court on oral argument, the

Fifth Circuit Court of Appeals’ decision in Caldwell v.

Crowell-Collier Publishing Co., 161 F2d 333, 335-336 (CA

5), cert. denied, 332 US 766, 65 S Ct 74, 92 L Ed 51 (1947),

is instructive. Construing a nationwide publication, the

Fifth Cireuit stated:

A libel is a compound of written falsity and malicious

publication, but the falsity may consist in untrue im-

putation as well as a direct statement, and malice may

be inferred from the nature of the charges made. False

imputations may be actionable per se, that is in them-

selves, or per quod, that is on allegation and proof

of special damages.

It is not necessary that the false charges be made in

a direct manner, if the words in their ordinary mean-

App. 25

ing convey it, and an insinuation is as actionable as

a positive assertion if the meaning is plain. (emphasis

added)

Accordingly, the Fifth Ciruit reversed the trial court’s dis-

missal of plaintiff’s suit based upon failure to state a claim.

See also Schultz v. Reader’s Digest Ass’n, 468 F Supp 551,

554 (ED Mich 1979) (it is for the jury to determine the

way in which an article susceptible of both defamatory

and non-defamatory interpretations is understood).

Other authorities reaching the same conclusion—that

implications, insinuations, imputations and portrayals may

be actionable—include Gatley, Libel & Slander (4th ed

1953), pps 18-21 (“A defendant is liable for insinuation

as well as for explicit statement, for insinuation may be as

defamatory as direct assertion and even more mischiev-

ous.”); 33 Am Jur, Libel and Slander, $45, 9, 45; Prosser,

Torts (4th ed 1971), 4111 (“In order that defendants’ words

be defamatory, they must be understood in a defamatory

sense. ... [T]here may be defamation by means of a ques-

tion, an indirect insinuation, an expression of belief or

opinion, or sareasm or irony.”) See also Williams v. Hicks

Printing Co., 159 Wise 90, 150 NW 183, 188 (1914) (“con-

ditional privilege .. . does not extend to unjust inferences.

... "3 Lbyszko v. New York American, Inc., 228 App Div

277, 239 NYS 411 (1930) (defamation by implication action-

able); Duncan v. The Record Publishing Co., 145 SC 196,

143 SE 31 (1927) (“But it does not follow that such literal

truth was a complete defense, as appellants contended. The

plaintiff’s cause of action for libel was predicated upon

the charge that the publication, literally true as it was,

was intended to convey and conveyed to readers thereof

the defamatory meaning attributed thereto. .. .”) ; Spiegel,

App. 26

Defamation by Implication—In the Confidential Manner,

29 So Cal L Rev 306 (1956).

B. Michigan Law Also Recognizes that False

Implications, Insinuations, Imputations and

Portrayals are Actionable as Defamatory.

Numerous Michigan decisions have recognized that

false implications, insinuations, imputations and portray-

als are actionable as defamatory. For example, the Michi-

gan Supreme Court in Nuyen v. Slater, 372 Mich 654, 662;

127 NW 2d 369 (1964), stated:

A communication is defamatory if it tends so to harm

the rcputation of another as to lower him in the esti-

mation of the community or to deter third persons

from associating or dealing with him.

Thus, while not directly discussing false implications, the

Supreme Court clearly contemplates both express and im-

plied defamation. Other Michigan decisions, including

many cited by defendants themselves, support this con-

clusion. In Kenney v. Hatfield, 351 Mich 498, 512, 88 NW

2d 535 (1958), the Michigan Supreme Court acknowledged:

It is generally held that a publication imputing

impairment of mental faculties is libel per se, and we

agree with plaintiff and appellant that the publica-

tion complained of here is such. (emphasis added).

Consideration of natural or logical implications, insinu-

ations, and imputation is also recognized in Hysko v. Po-

lonia Publishing Co., 239 Mich 676, 681, 215 NW 3 (1927),

where the Supreme Court stated, in a defamation context:

The words used are to be taken in the sense in which

they would be understood by those who read them.

As noted by defendants, the Michigan Supreme Court has

often considered the extent of inference to be recognized

App. 27

as libelous. See, e.g., Van Lonkhuyzen v. Daily News Co.,

195 Mich 283, 295, 161 NW 979 (1917); Simons v. Burn-

ham, 102 Mich 189, 195-197 (1894). But these older cases,

relied upon by defendants, against make clear that the

scope of defamation includes liability for inferences; as

stated by the Supreme Court in Simons, supra:

We can understand how words may be used and un-

derstood in a different, and. even opposite, sense from

what they naturally and ordinarily import, as where

used ironically, or in the nature of slang, or as a

quotation having a well understood significance, or

where they are used in a cipher; but in all such cases

it is necessary that the declaration should allege

facts which, if proved, will enable a court to say that

these words, interpreted in the light of them, may

reasonably be held to bear the construction claimed,

leaving to the jury the truth or falsity of the allega-

tions upon which the alleged meaning depends, as

well as the question of the meaning.

We get into deep water when we depart from the

rule that actions for slander and libel do not lie upon

inferences though we must recognize a distinction

between inferences which are the natural result of

implications contained in the language of the pub-

lication .. . and inferences drawn only from the facts

themselves. In the former case the action may lie,—

mot because of the inference, but by reason of the

implication; in the latter it will not. (emphasis added).

Thus, even under the Supreme Court’s 1894 decision in

Stmons, plaintiffs herein are recognized to have a cause

of action in defamation against defendants based upon

the implications arising out of defendants’ inferences.

See also Sanders v. Evening News Ass’n, 313 Mich 334,

343, 21 NW 2d 152 (1946) (defendants’ publications must

App. 28

be “fairly and reasonably construed”) ; Edwards v. Chand-

ler, 14 Mich 471, 476, 90 Am Dee 249 (1866) (“[Wle are

not prepared to say that a jury could not draw such an

inference without unreasonably stretching or perverting

the sense. Such language must be construed by the jury,

and not by the court.”) ; Dawson v. Wright, 8 Med L Reptr

2001, 2002 (Oakland County Circuit Court No. 80-206224,

decided April 30, 198?' (“the article is reasonably sus-

ceptible of a defamatory interpretation”).

Thus, Michigan case law clearly supports the widely

recognized principle that false implications, insinuations,

imputations, and portrayals are actionable. See also

MCLA 600.2911(1) (imputation of unchastity as defama-

tory).

C. The Trial Court’s Finding was Supported

By the Record Before It.

Contrary to defendant’s misrepresentations, at no

time have plaintiffs admitted that the articles in question

are factually or otherwise true. At no time during this

litigation has the trial court found plaintiffs to be either

public figures or public officials (plaintiffs expressly deny

that they are either public figures or public officials). At

no time during this litigation has the trial court found de-

fendants’ articles regarding plaintiffs to be comment on

a matter of public interest (plaintiffs deny that any mat-

ter regarding plaintiffs own lives is a matter of public

interest). At no time during presentation of their motion

for summary judgment pursuant to GCR 1963, 117.2(3),

have defendants submitted a proper affidavit in support

of that motion. During oral argument on defendants’

second motion for summary judgment, defendants were

App. 29

unable to cite any authority in support of their position.

Defendants’ second motion for summary judgment was

actively opposed by plaintiffs, with proper and unrebutted

supporting affidavits signed by plaintiffs specifying deny-

ing defendants’ false implications, insinuations, imputa-

tions and portrayals. All law presented during oral ar-

gument on defendants’ second motion for summary judg-

ment supported plaintiffs’ position.

In light of the above record—the same record before

the trial court when it heard defendants’ second motion

for summary judgment—it is ludicrous for defendants to

contend that the trial court’s order denying defendants’

motion was “clearly erroneous” as alleged in defendants’

Application for Leave to Appeal to this Court. Plaintiffs

respectfully submit that the trial court’s finding of a fac-

tual issue—whether defendants’ articles were capable of

a defamatory interpretation—was not clearly erroneous.

By analogy, see Superior Prod v. Merucci Bros, 107 Mich

App 153, 309 NW 2d 188 (1981) (an appellate court will

set aside a trial court’s findings of fact only where the

findings are clearly erroneous).

D. In the Absence of Any Trial Court Finding of

Public Figure/Public Official/Public Interest

Status With Regard to This Litigation, Defend-

ants’ Federal Constitutional Argument is Not

Properly Before This Court, is Premature, and

Confuses Defamation Concepts.

Defendants rely upon three cases in support of de-

fendants’ federal constitutional argument, Gertz v. Robert

Welch, Inc, 418 US 323, 94 S Ct 2997, 41 L Ed 2d 789

(1974) (Gertz I); Wilson v. Scripps-Howard Broadcasting

Co, 642 F 2d 371 (CA 6), cert granted, 454 US 962, 102

App. 30

S Ct 500, 70 L Ed 2d 377 (1981) (settied prior to oral ar-

gument, National Law Journal, June 21, 1982, p. 9); and

Orr v. Argus-Press, 586 F 2d 1108 (CA 6, 1978), cert. de-

nied, 440 US 960, 99 S Ct 1502, 59 L Ed 2d 773 (1979).

Plaintiffs respectfully submit that defendants’ federal

constitutional argument is not properly before this Court,

is premature, and confuses unnecessarily different def-

amation concepts.

In the trial court defendants’ second motion for sum-

mary judgment briefly discussed the Sixth Circuit’s im-

plementation in Wilson, supra, of the United States Su-

preme Court’s decision in Gertz, supra. In the trial court,

Gertz was cited by defendants for the proposition that

states may impose defamation liability upon a publisher

or broadcaster so long as liability is not imposed without

fault. Plaintiffs stand ready to prove that fault at trial,

but are not required to prove fault on defendants’ motion

for summary judgment, only that a factual issue exists,

which is the ease unless defendants are admitting the

falsity of their publications. It must be remembered that

Gertz involved the reversal by the Supreme Court of the

trial court’s entry of judgment n.o.v., after full trial, and

therefore presents a dissimilar test. The trial court’s find-

ing in this case did not impose liability without fault on

defendants; rather, the trial court held only that a gen-

uine issue of material fact had been presented.

With regard to defendant’s reliance on Wilson, supra,

plaintiffs again note that the appellate court’s language

must be viewed in the appropriate context—post-verdict,

not on a motion for partial summary judgment before

plaintiffs had opportunity to depose defendants. Again,

App. 31

plaintiffs anticipate imposing liability based upon fault

at trial in this case.

Considering defendants’ reliance on Orr, supra, plain-

tiffs are compelled to note that Orr is another post-judg-

ment appeal, not an interlocutory appeal. Further, re-

liance on Orr is misplaced and inappropriate as Orr spe-

cifically included a finding that plaintiff was a public

figure and a finding of public interest, thereby requiring

an actual malice standard inapplicable in this matter

where no court has made any such finding on either issue.

Plaintiffs do not dispute that a different standard

may apply post-judgment, after trial, but respectfully sub-

mit that defendants’ premature application of post-trial

standards in seeking to overturn a trial court finding that

plaintiffs’ unrebutted affidavits at a minimum created a

genuine issue of material fact under GCR 1963, 117.2(3),

is erroneous and unnecessarily confuses defamation con-

cepts.

Plaintiffs also note for pur} oses of clarification that

defendants’ use of related jury instructions (3 Devitt &

Blackmar, Federal Jury Practice and Instructions (3d ed),

§ 84.08) at pages 8-9 of defendants’ Brief on Appeal is

seriously misleading; even a cursory review of this ma-

terial in the original clearly indicates the caption on the

instruction: ‘‘Libel in Privileged Situation—Essential

Elements” (emphasis added). As stated above, there has

been no finding that this ease involves (a) a publie figure;

(b) a public official; or (c) a matter of public interest.

Absent such a supportable finding, no privileged situation

exists, and defendants’ misrepresentation (including a re-

quirement ‘‘actual malice’’ under the sixth part of the

App. 32

instruction) that this instruction is in any way applicable

to this case must be disregarded by this Court.

SUMMARY

In the trial court defendants sought summary judg-

ment based upon the alleged absence of a genuine issue of

material fact. Several aspects of defendants’ Brief on

Appeal raise issues arising out of a 1981 trial court order

denying defendants’ motion for summary judgment for

failure to state a claim upon which relief could be

granted; these aspects and issues_were not preserved for

appeal and may not properly be considered by this Court

as part of this appeal.

Further, defendants’ second motion for summary

judgment was defective in that it was not supported by a

proper affidavit under GCR 1963, 117.3. This defect was

raised in the trial court by plaintiffs, yet not cured by de-

fendants. This Court has repeatedly held that summary

judgment shall not be granted under such circumstances.

Finally, defendants allege that there can be no de-

famation based upon false implications, insinuations, im-

putations, and portrayals. As demonstrated by plaintiffs

at length, numerous state and federal court decisions

clearly indicate that false implications, insinuations, im-

putations, and portrayals clearly are actionable, particu-

larly with a private individual and private matters such

as in this case. Michigan decisions repeatedly have held

that a defamation action may be maintained based upon

false implications, insinuations, imputations, and portray-

als. See, e.g., Simons v. Burnham, supra. No finding of

applicable privilege, based on public figure/official or

App. 33

public interest or otherwise, has been made by the trial

court, and this issue is not before this Court on appeal.

Further, case law is clear, contrary to defendants’ implied

assertion, that different standards of proof are to be used

when determining a motion for summary judgment not

supported by proper affidavits than when reviewing trial

proofs in a post-judgment proceeding.

Plaintiffs respectfully submit that the trial court’s

decision in this matter was proper and must be affirmed.

RELIEF REQUESTED

WHEREFORE, plaintiffs respectfully pray and ask

this Honorable Court to affirm the trial court’s May 6,

1982, order denying defendants’ Motion for Summary

Judgment as to Plaintiffs’ Libel Claim, together with costs

and attorneys’ fees to plaintiffs most unjustly sustained.

Respectfully submitted,

KITCH, SUHRHEINRICH, SMITH,

SAURBIER & DRUTCHAS, P.C.

BY: STEPHEN M. KELLEY (P33197)

Attorneys for plaintiffs

2000 Buhl Building

Detroit, Michigan 48226

(313) 964-5890

Dated: January 26, 1983

App. 34

STATE OF MICHIGAN

IN THE COURT OF APPEALS

Court of Appeals

No.: 64729

Wayne County Circuit

Court No.: 80-012145 CZ

JOSEPH JUDEUS LOCRICCHIO and

GARY FRANCELL,

Plaintiffs-Appellees,

THE EVENING NEWS ASSOCIATION, INC., a

Michigan Corporation, PETE WALDMEIR, BILL

GILES, JEFF LADERMAN, MICHAEL F. WEND-

LAND, JEAN GADOMSKI, RICHARD WILLING,

ROBERT ANKENY, and JIM GRAHAM, jointly

and severally,

Defendants-Appellants.

AFFIDAVIT OF COUNSEL

STATE OF MICHIGAN )

SS:

COUNTY OF WAYNE )

STEPHEN M. KELLEY, being first duly sworn, de-

poses and says that he is an attorney for plaintiffs in this

matter, and that he has read the foregoing BRIEF ON

APPEAL by him subscribed and says that the contents of

same are true to the best of his knowledge, information

and belief.

Deponent further sayeth not.

/s/ Stephen M. Kelley

App. 35

Subscribed and sworn to before me

this 26th day of January, 1983.

/s/ Tracy Rae Anger

Notary Public

Wayne County, Michigan

My commission expires: 11/21/84

STATE OF MICHIGAN

IN THE COURT OF APPEALS

Court of Appeals

No.: 64729

Wayne County Circuit

Court No.: 80-012145 CZ

JOSEPH JUDEUS LOCRICCHIO and

GARY FRANCELL,

Plaintiffs-A ppellees,

THE EVENING NEWS ASSOCIATION, INC., a

Michigan Corporation, PETE WALDMEIR, BILL

GILES, JEFF LADERHAM, MICHAEL F. WEND.-

LAND, JEAN GADOMSKI, RICHARD WILLING,

ROBERT ANKENY, and JIM GRAJ.AM, jointly

and severally,

Defendants-A ppellants.

PROOF OF SERVICE

STATE OF MICHIGAN )

)SS

COUNTY OF WAYNE _)

AUDREY BRENNAN, being first duly sworn de-

poses and says that she is employed by the law firm of

KITCH, SUHRHEINRICH, SMITH, SAURBRIER &

DRUTCHAS, P.C., attorneys for Plaintiffs herein; that

App. 36

on the 26th day of January, 1983, she did serve a true copy

of PLAINTIFFS’ BRIEF ON APPEAL, AFFIDAVIT

OF COUNSEL, and AFFIDAVIT OF SERVICE, upon

the following attorney of record:

JAMES E. STEWART

1881 FIRST NATIONAL BLDG.

DETROIT, MICHIGAN 48226

by enclosing same in an envelope addressed to same and

depositing said envelope in the U.S. postal receptacle in

the Buhl Building, Detroit, Michigan.

Deponent further saith not.

/s/ Audrey ‘Brennan

Subseribed and sworn to before me

this 26th day of January, 1983.

/s/ Tracy Rae Anger

Notary Public

Wayne County, Michigan

My commission expires: 11/21/84

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.