UNPUBLISHED September 19, 2017 LAWRENCE E. DIXON, Plaintiff-Appellant, v No Oakland Circuit Court. Defendants-Appellees.

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1 S T A T E O F M I C H I G A N C O U R T O F A P P E A L S LAWRENCE E. DIXON, Plaintiff-Appellant, UNPUBLISHED September 19, 2017 v No Oakland Circuit Court OAKLAND COUNTY and TIMOTHY ATKINS, LC No CZ Defendants-Appellees. Before: GADOLA, P.J., and CAVANAGH and SWARTZLE, JJ. PER CURIAM. Plaintiff appeals as of right an order granting defendants motion for summary disposition pursuant to MCR 2.116(C)(7) and (C)(8). We affirm. In 2015, plaintiff applied to the Michigan Liquor Control Commission (MLCC) for reinstatement of a liquor license that had been revoked. The request was denied, and plaintiff appealed the decision. Defendant Captain Timothy Atkins, on behalf of the Oakland County Sheriff s Office, submitted a letter to the MLCC recommending the denial of plaintiff s appeal. Subsequently, plaintiff s appeal was denied by the MLCC. Plaintiff then filed this lawsuit, claiming that the letter sent by defendant Atkins contained false statements and relied on false information that Atkins knew was false and nevertheless published. Plaintiff s complaint asserted claims of tortious interference with a business expectancy, defamation, and false-light invasion of privacy. Plaintiff also asserted that defendant Atkins was not entitled to qualified immunity; these were intentional torts and he acted in bad faith when he wrote the false statements which the Oakland County Sheriff s Office had refused to retract or correct. Further, defendant Oakland County was vicariously liable for the actions of Atkins who was acting in the course of his employment and within his authority when he wrote the letter. In response to plaintiff s complaint, defendants filed a motion for summary disposition under MCR 2.116(C)(7) and (C)(8). Defendants first argued that defendant Oakland County was immune from all of plaintiff s claims under MCL (1) and, thus, it was entitled to summary disposition. More specifically, the alleged torts occurred while defendant Atkins was engaged in the exercise or discharge of a governmental function he had a duty to send the MLCC a letter under Mich Admin Code, R (2)(d) and his conduct was authorized by MCL (4). Moreover, defendant Oakland County cannot be held liable for intentional -1-

2 torts committed by an employee engaged in a governmental function. Second, defendant Atkins was entitled to summary disposition because his letter to the MLCC was written in the course of his official duties about a matter of public concern and was addressed only to the members of the MLCC for the purpose of deciding plaintiff s appeal; thus, the letter was absolutely privileged and not broadcast to the general public. Accordingly, plaintiff s defamation and false-light invasion of privacy claims must be dismissed. And because plaintiff had no valid business expectancy with the MLCC which had denied his request for reinstatement of his liquor license before defendant Atkins submitted the letter plaintiff s claim of tortious interference with a business expectancy must also be dismissed. In the alternative, defendant Atkins was entitled to qualified immunity under MCL (3) because the letter was written during the course of his employment, in good faith, and involved the making of statements that were discretionary in nature. Accordingly, defendants argued, plaintiff s entire complaint should be dismissed. Plaintiff responded to defendants motion, arguing that the intentional use of falsified information in a letter to the MLCC was a misuse of authority and cannot constitute a governmental function; thus, defendant Oakland County was not protected by governmental immunity under MCL (1) and was vicariously liable for the actions of defendant Atkins. Further, the recommendation letter was not subject to absolute privilege because defendant Atkins was not a witness and he was not giving testimony in this quasi-judicial proceeding, nor was the letter considered a pleading. Moreover, plaintiff had a reasonable business expectancy with the MLCC which likely would have reinstated his liquor license but for the letter. And defendant Atkins was not entitled to qualified immunity because the false statements in the letter were written by Atkins with actual malice as evidenced by the fact that he had no documentation to support his false statements which were outright lies. Accordingly, plaintiff argued, defendants were not entitled to summary disposition. Defendants replied to plaintiff s response to their motion for summary disposition, noting that plaintiff s argument failed to comprehend that the focus of a governmental immunity analysis is on the general nature of the activity not the specific conduct alleged. In other words, the focus in this case is on the sending of a recommendation letter to the MLCC by defendant Atkins and not on the alleged fact that the opinion included false information. Further, the recommendation letter was protected by absolute privilege because Atkins was a witness who had a duty to write such letters and because the privilege extended to everything involved in the MLCC quasi-judicial proceeding. Accordingly, defendants argued, plaintiff s case should be dismissed. The trial court agreed with defendants and granted their motion for summary disposition. The court held that governmental immunity barred plaintiff s claims against defendant Oakland County because the alleged torts occurred while defendant Atkins was engaged in the exercise of a governmental function. The court noted that governmental immunity is based on the general nature of the activity of its employees, not the specific conduct alleged, and defendant Atkins was authorized by law to send the letter to the MLCC. Further, as defendants argued, the recommendation letter sent by defendant Atkins to the MLCC was absolutely privileged; it concerned a matter of public interest, was addressed only to members of the MLCC, and was not distributed to the public at large. Plaintiff also could not establish that he had any valid business expectancy with the MLCC because his application had been denied before the letter was sent. And plaintiff could not show that any information attributing false characteristics, conduct or -2-

3 beliefs to Plaintiff was broadcast to the public in general or to a large number of people. Accordingly, plaintiff s case was dismissed in its entirety under MCR 2.116(C)(7) and (C)(8). This appeal followed. Plaintiff first argues that defendant Oakland County was not entitled to immunity because the writing of falsehoods in a letter to the MLCC by defendant Atkins was not a governmental function. We review de novo a trial court s decision on a motion for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). When we consider a motion for dismissal based on governmental immunity under MCR 2.116(C)(7), we review the evidentiary support such as affidavits, depositions, and admissions, as well as pleadings, to determine whether the claim is barred by immunity. Id. at 119. A complaint s allegations are accepted as true unless contradicted by the defendant. Id. We also review de novo the applicability of governmental immunity as a question of law. Herman v Detroit, 261 Mich App 141, 143; 680 NW2d 71 (2004). MCL (1) provides, in relevant part: Except as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function. Governmental immunity is a characteristic of government; accordingly, a plaintiff suing a governmental entity must plead facts indicating that the conduct at issue was not the exercise of a governmental function or was subject to an exception to immunity. Kendricks v Rehfield, 270 Mich App 679, 681; 716 NW2d 623 (2006). This burden is placed on the plaintiff to relieve the government, in many cases, of the expense of discovery and trial furthering the purpose of governmental immunity which is to avoid the expenditure of state funds in litigation. Odom v Wayne Co, 482 Mich 459, 479; 760 NW2d 217 (2008); Costa v Community Emergency Med Servs, Inc, 475 Mich 403, 410; 716 NW2d 236 (2006). In this case, plaintiff argues that defendant Oakland County was not engaged in the exercise or discharge of a governmental function when its law enforcement officer, defendant Atkins, sent the recommendation letter to the MLCC allegedly containing falsehoods. MCL (b) defines governmental function as an activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law. Governmental function includes an activity performed on public or private property by a sworn law enforcement officer within the scope of the law enforcement officer s authority, as directed or assigned by his or her public employer for the purpose of public safety. This definition is to be broadly applied and the determination whether an activity was a governmental function focuses on the general activity, not the specific conduct involved. Ward v Mich State Univ (On Remand), 287 Mich App 76, 84; 782 NW2d 514 (2010). Thus, as the trial court noted, the focus is on the general act of submitting a recommendation letter to the MLCC regarding plaintiff s appeal of the MLCC s decision an activity which is clearly authorized by -3-

4 law, expressly or impliedly. See MCL (4); Rule (2)(d). That is, the submission of the letter was not an ultra vires activity. See Herman, 261 Mich App at 144. And whether the recommendation letter contained falsehoods, as plaintiff claims, is not relevant to the determination; the focus of the analysis is not on the specific contents of the letter to the MLCC. Thus, we conclude that defendant Oakland County was engaged in the exercise or discharge of a governmental function under MCL (1) when the MLCC was sent a recommendation letter regarding plaintiff s appeal of the denial of his request for reinstatement of his liquor license. Further, defendant Oakland County cannot be held vicariously liable for any purported intentional torts defendant Atkins committed when he compiled and submitted the recommendation letter to the MLCC. See Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 625; 363 NW2d 641 (1984); Harrison v Director of Dep t of Corrections, 194 Mich App 446, 450; 487 NW2d 799 (1992). A governmental agency can be held vicariously liable only when its officer, employee, or agent, acting during the course of employment and within the scope of authority, commits a tort while engaged in an activity which is nongovernmental or proprietary, or which falls within a statutory exception. Ross, 420 Mich at 625 (emphasis supplied). Because defendant Atkins was engaged in an activity which was a governmental function when he allegedly committed the purported intentional torts, defendant Oakland County is entitled to governmental immunity. Accordingly, the trial court properly granted defendants motion for summary disposition and dismissed defendant Oakland County from this action. Next, plaintiff argues that defendant Atkins is not entitled to qualified governmental immunity for intentional torts committed when he submitted the recommendation letter to the MLCC that contained falsehoods and false information because he did not act in good faith. However, the trial court did not consider the issue whether defendant Atkins was entitled to qualified governmental immunity. For example, the court s opinion does not refer to qualified immunity, and does not consider whether defendant Atkins acted in good faith or whether his acts were discretionary. See Odom, 482 Mich at 480, citing Ross, 420 Mich at Instead, it appears the trial court dismissed plaintiff s intentional tort claims against defendant Atkins pursuant MCR 2.116(C)(8), for failure to state a claim upon which relief could be granted even considering plaintiff s allegations as true and in a light most favorable to plaintiff. See Maiden, 461 Mich at 119. In particular, the court dismissed plaintiff s defamation claim, holding that defendant Atkins s letter to the MLCC was absolutely privileged.... That is, [e]ven if the statements were false and maliciously made, they were not actionable. The court dismissed plaintiff s claim of tortious interference with a business expectancy, holding that plaintiff had no valid business expectancy with the MLCC because his application for reinstatement of his liquor license had been denied even before the letter was sent to the MLCC. And, finally, the court dismissed plaintiff s false-light invasion of privacy claim, holding that plaintiff could not show that any information attributing false characteristics, conduct or beliefs to Plaintiff was broadcast to the public in general or to a large number of people. We address each dismissal in turn. To establish a claim of defamation, one of the elements a plaintiff must prove is that an unprivileged communication was made to a third party. Mitan v Campbell, 474 Mich 21, 24; 706 NW2d 420 (2005). Certain statements are absolutely privileged. Oesterle v Wallace,

5 Mich App 260, 264; 725 NW2d 470 (2006). The issue whether a privilege attaches is a question of law for the trial court. Couch v Schultz, 193 Mich App 292, 294; 483 NW2d 684 (1992). An absolutely privileged communication is one for which no remedy is provided for damages in a defamation action because of the occasion on which the communication is made. A privileged occasion is an occasion where the public good requires that a person be freed from liability for the publication of a statement that would otherwise be defamatory. [Id. (citations omitted).] It is well-established that statements made during or in relation to judicial proceedings and quasijudicial proceedings are absolutely privileged. Id. at Judicial proceedings may include any hearing before a tribunal or administrative board that performs a judicial function. Id. at 294. In this case, we agree with the trial court that a hearing before the MLCC is a quasijudicial proceeding as plaintiff conceded in the lower court. See, e.g., MCL ; Civil Serv Comm v Dep t of Labor, 424 Mich 571, 619; 384 NW2d 728, amended 425 Mich 1201 (1986); L & L Wine & Liquor Corp v Liquor Control Comm, 274 Mich App 354, 357; 733 NW2d 107 (2007). And there is no dispute that defendant Atkins submitted the recommendation letter in response to plaintiff s appeal of the denial of his request for reinstatement of his liquor license. The immunity extends to every step in the proceeding and covers anything that may be said in relation to the matter at issue.... Couch, 193 Mich App at 295. Moreover, [t]he judicial proceedings privilege should be liberally construed so that participants in judicial proceedings are free to express themselves without fear of retaliation. Id. Thus, the statements defendant Atkins made in the letter to the MLCC in an effort to influence its decision on plaintiff s appeal are absolutely privileged and there can be no action for defamation. Id. at 294. Accordingly, the trial court properly dismissed plaintiff s defamation claim under MCR 2.116(C)(8). Plaintiff also brought a claim of tortious interference with a business expectancy. To establish such a claim, one of the elements the plaintiff must prove is the existence of a valid business relationship or expectancy. Health Call of Detroit v Atrium Home & Health Care Servs, Inc, 268 Mich App 83, 90; 706 NW2d 843 (2005). The issue here is whether plaintiff, who was appealing the denial of his request to reinstate his liquor license, had a valid business expectancy. To be considered a valid business expectancy, [t]he expectancy must be a reasonable likelihood or probability, not mere wishful thinking. Trepel v Pontiac Osteopathic Hosp, 135 Mich App 361, 377; 354 NW2d 341 (1984). And considering the highly discretionary nature of the decision to be made by the MLCC, as well as the fact that plaintiff s application for reinstatement had been denied even before defendant Atkins submitted the letter, plaintiff could not establish this element. Thus, the trial court properly dismissed plaintiff s tortious interference with a business expectancy claim under MCR 2.116(C)(8). Plaintiff s final claim was a false-light invasion of privacy claim. In Duran v Detroit News, Inc, 200 Mich App 622, ; 504 NW2d 715 (1993), this Court explained: In order to maintain an action for false-light invasion of privacy, a plaintiff must show that the defendant broadcast to the public in general, or to a large number of people, information that was unreasonable and highly objectionable by -5-

6 attributing to the plaintiff characteristics, conduct, or beliefs that were false and placed the plaintiff in a false position. In this case, defendant Atkins addressed and mailed the recommendation letter at issue to the three members of the MLCC, only. Thus, as the trial court held, plaintiff was unable to show that any information attributing false characteristics, conduct or beliefs to Plaintiff was broadcast to the public in general or to a large number of people. Accordingly, the trial court properly dismissed plaintiff s false-light invasion of privacy claim under MCR 2.116(C)(8). In summary, we affirm the trial court s order dismissing plaintiff s case in its entirety pursuant to MCR 2.116(C)(7) and (C)(8). Affirmed. Defendants are entitled to tax costs as the prevailing parties. MCR 7.219(A). /s/ Michael F. Gadola /s/ Mark J. Cavanagh /s/ Brock A. Swartzle -6-