                           STATE OF MICHIGAN

                            COURT OF APPEALS



TODD L. LEVITT,                                                      UNPUBLISHED
                                                                     May 16, 2017
               Plaintiff/Respondent-Appellee,

v                                                                    No. 330946
                                                                     Isabella Circuit Court
DIGITAL FIRST MEDIA, THE MORNING SUN,                                LC No. 15-012317-NZ
and LISA YANICK-JONAITIS,

               Defendants/Petitioners-Appellants.


Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and GADOLA, JJ.

PER CURIAM.

        This defamation case stems from defendants’ news coverage of a separate lawsuit.
Plaintiff is an attorney and was an adjunct professor at Central Michigan University (CMU). In
2014, plaintiff sued CMU student Zachary Felton after Felton created the Twitter account “Todd
Levitt 2.0,” used plaintiff’s picture and logo for the account, and posted numerous tweets over a
two-week period. Plaintiff asserted claims of false light, intentional infliction of emotional
distress, libel, tortious interference with business relations, defamation per se, business
defamation, and unfair competition. The trial court granted summary disposition in favor of
Felton and dismissed the case after concluding that the Twitter account was an obvious parody
and therefore protected by the First Amendment. Plaintiff appealed that ruling, and this Court
upheld the trial court’s decision on appeal. Levitt v Felton, unpublished opinion per curiam of
the Court of Appeals, issued May 19, 2016 (Docket No. 326362) (Levitt I).

        In August 2014, The Morning Sun, a subsidiary of Digital First Media, published an
article discussing Levitt I with the headline, “[L]awyer suing student admits to fake award[.]”
The article, which was written by Lisa Yanick-Jonaitis, contained information about the case,
specifically Felton’s affirmative defenses and allegations, and plaintiff’s answers to
interrogatories. The article stated that plaintiff created the website “topcollegelawyers.com,” and
that the website announced plaintiff as the winner of a College Lawyer of the Year award.

       Plaintiff sued defendants, raising claims of libel and slander, false light, civil conspiracy,
and intentional infliction of emotional distress. Plaintiff’s complaint states the following
regarding the statements in the article:




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              13. On or about Sunday, August 10, 2014, The Morning Sun published a
       front page, above-the-fold headline, “Attorney suing student admits to fake
       award”, for a following story written by Yanick-Jonaitis.

               14. Yanick-Jonaitis wrote in that article, among other things:

               a. “a Mt. Pleasant lawyer and former Central Michigan University
       instructor, who is suing a student for defamation, admitted in court documents
       filed Friday that he created a ‘top college lawyer’ recognition and awarded it to
       himself”; and

              b. “one of those claims, supported by HTML coding information entered
       as an exhibit in the case, is that Levitt himself created the website
       topcollegelawyers.com, and then proclaimed himself ‘College Lawyer of the
       Year’, and used the manufactured award to promote himself”; and

              c. “the website in part said that Levitt was, ‘Chosen by an independent
       search committee measuring social media influence together with campus
       involvement to assist students academically in persuing [sic] their futures”[.]

        Defendants moved for summary disposition under MCR 2.116(C)(8) and MCR
2.116(C)(10), arguing that plaintiff failed to allege facts to establish actual malice. Defendants
further contended that, as a member of the news media, they were entitled to the fair-reporting
privilege of MCL 600.2911(3) because the article was a fair and true representation of the
developments in Levitt I. They also maintained that they were entitled to summary disposition
because the challenged statements were not materially false.

        Plaintiff argued in response that the article did not merely report on the pleadings in
Levitt I. Although plaintiff admitted that he created the website “topcollegelawyers.com,” that
the website announced plaintiff as the “winner” of the College Lawyer of the Year award, and
that the website said plaintiff was chosen as the award recipient “by an independent search
committee,” he emphasized that the headline stating that he admitted to a fake award was false.
Plaintiff submitted the affidavit of Ryan Battishall, who explained that plaintiff hired him to
develop and launch the website and instructed that an annual award would be a component of the
website. Plaintiff also submitted the affidavits of attorneys Joshua Jones and Robert Piaziali,
who explained that, at plaintiff’s request, they served as members of the independent committee
referenced by the website. They said they chose plaintiff as the first recipient of the award on
the basis of the website’s criteria.

        The trial court issued an opinion and order denying defendants’ motion for summary
disposition. The court recognized that a showing of actual malice is only required in a
defamation action by a plaintiff who is a public figure, and concluded that plaintiff was a private
figure under the facts presented. The court further concluded that the fair-reporting privilege in
MCL 600.2911(3) did not apply because, although Felton in Levitt I alleged that plaintiff created
a fake award, plaintiff did not admit to creating a fake award and in fact provided evidence to the
contrary. The court determined that defendants failed to show that the article was not materially
false because the “gist” of the article was that “plaintiff admitted to creating a fake award, which

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he then awarded to himself,” which the court concluded produced a different effect on the reader
than the literal truth. Lastly, the trial court denied summary disposition on plaintiff’s claims of
intentional infliction of emotional distress, false light, and civil conspiracy.

        Defendants filed an application for leave to appeal in this Court, arguing that plaintiff
failed to sufficiently plead fault regarding his defamation claim; that defendants were entitled to
the fair-reporting privilege; that the statements identified by plaintiff from the article were
substantially true; and that the trial court erred by failing to dismiss plaintiff’s other claims in
light of his insufficient defamation claim. On March 3, 2016, this Court granted the application
for leave to appeal, “limited to the issues raised in the application.” Levitt v Digital First Media,
unpublished order of the Court of Appeals, entered March 3, 2016 (Docket No. 330946).

                                  II. STANDARD OF REVIEW

        We review de novo a trial court’s grant or denial of a motion for summary disposition.
Thomas v Bd of Law Examiners, 210 Mich App 279, 280; 533 NW2d 3 (1995). We also review
de novo “whether a person is a public figure for purposes of a defamation action.” Bufalino v
Detroit Magazine, Inc, 433 Mich 766, 774; 449 NW2d 410 (1989). A motion for summary
disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim; summary disposition
on this basis is warranted if the complaint fails to state a claim on which relief can be granted.
Haynes v Neshewat, 477 Mich 29, 34; 729 NW2d 488 (2007). “The motion should be granted
only if no factual development could possibly justify recovery.” Id.

       A motion for summary disposition under MCR 2.116(C)(10) tests the factual support of a
claim. Spiek v Mich Dep’t of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). When
reviewing a motion under MCR 2.116(C)(10), courts consider the affidavits, pleadings,
depositions, admissions, and other documentary evidence in a light most favorable to the party
opposing the motion. Id. Summary disposition under MCR 2.116(C)(10) is appropriate if there
is no genuine issue as to any material fact and the moving party is entitled to judgment as a
matter of law. Id.
                                        III. DISCUSSION

        To establish a claim of defamation, a plaintiff must prove the following four elements:
(1) “a false and defamatory statement concerning the plaintiff,” (2) “an unprivileged
communication to a third party,” (3) “fault amounting to at least negligence on the part of the
publisher,” and (4) “either actionability of the statement irrespective of special harm or the
existence of a special harm caused by publication.” Rouch v Enquirer & News of Battle Creek
Mich (After Remand), 440 Mich 238, 251; 487 NW2d 205 (1992) (Rouch II). The First
Amendment further requires courts “to determine whether the plaintiff is a public or private
figure, whether the defendant is part of the media, and whether the allegedly defamatory
statement involved a matter of public interest.” Collins v Detroit Free Press, Inc, 245 Mich App
27, 32; 627 NW2d 5 (2001). If a plaintiff is a public figure, he or she must prove by clear and
convincing evidence that the challenged statements were made with actual malice. Garvelink v
Detroit News, 206 Mich App 604, 608; 522 NW2d 883 (1994); MCL 600.2911(6). There are
two types of public figures: a general-purpose public figure and a limited-purpose public figure.
Bufalino, 433 Mich at 779-780.


                                                -3-
        A limited-purpose public figure is a person who “voluntarily injects himself or is drawn
into a particular controversy and assumes special prominence in the resolution of that public
controversy.” New Franklin Enterprises v Sabo, 192 Mich App 219, 222; 480 NW2d 326
(1991). By contrast, a general-purpose public figure is someone who has “general fame or
notoriety in the community, and pervasive involvement in the affairs of society.” Bufalino, 433
Mich at 780 (quotation marks and citation omitted). “Courts have tended to limit the designation
to those persons whose names have become household words.” Id. at 788-789. “[P]ublic
attention and media interest do not, in and of themselves, necessarily justify a finding that a
person is a ‘public figure.’ ” Id. at 787.

        We agree with the trial court that plaintiff was not a public figure. Defendants do not
argue that plaintiff was involved in any public controversy, such that he could be considered a
limited-purpose public figure. And although there is some evidence that plaintiff is well-known
on CMU’s campus, receives publicity through the student newspaper, posts YouTube videos,
hosts a radio show, and filmed a pilot for a reality TV show, these activities do not demonstrate
that plaintiff has “general fame or notoriety in the community,” Bufalino, 433 Mich at 780, such
that he could be considered a general-purpose public figure. Rather, plaintiff is a private figure.

        This case also involves media defendants and a matter of public interest.1 Reports
regarding court cases are matters of public concern. See Rouch II, 440 Mich at 274-275 (RILEY,
J., concurring). And reports on flawed public services, such as the article’s discussion of Levitt I,
which addressed plaintiff’s allegedly improper marketing of legal services to the public, can
constitute matters of public interest.2 “[S]peech on matters of public concern merits heightened
protection under the First Amendment.” Locricchio v Evening News Ass’n, 438 Mich 84, 119;
476 NW2d 112 (1991). A private plaintiff suing a media defendant for defamation regarding a
matter of public interest must first prove the falsity of a challenged statement. Id. at 122.

        “[T]he substantial truth doctrine provides the common law definition of falsity that a
plaintiff must meet in order to prevail on a defamation claim.” Collins, 245 Mich App at 34
(quotation marks and citation omitted). Substantial truth is an absolute defense to a defamation
claim. Id. at 33. The test looks at the sting of an article to determine its effect on the reader; “a
statement is not considered false unless it would have a different effect on the mind of the reader
from that which the pleaded truth would have produced.” Id. at 34 (quotation marks and
citations omitted). Articles with “minor inaccuracies” that do “not alter the complexion of the
affair and would have no different effect on the reader than that which the literal truth would


1
 Defendants argue that the article at issue involved a matter of public interest and plaintiff does
not dispute this claim on appeal.
2
  See, e.g., America Transmission, Inc v Channel 7 of Detroit, Inc, 239 Mich App 695, 696-699,
702; 609 NW2d 607 (2000) (discussing the validity and quality of a company’s transmission
repairs); Hawkins v Mercy Health Servs, Inc, 230 Mich App 315, 326; 583 NW2d 725 (1998)
(discussing “the death of a patient at the hospital following the inappropriate administration of
medication”); Royal Palace Homes, Inc v Channel 7 of Detroit, Inc, 197 Mich App 48, 49-51;
495 NW2d 392 (1992) (discussing flawed homes built by a particular building contractor).


                                                -4-
produce” are substantially true. Rouch II, 440 Mich at 270 (quotation marks and citation
omitted). If published information is substantially true, a trial court should grant summary
disposition under MCR 2.116(C)(10) regarding any related defamation claim. Koniak v Heritage
Newspapers, Inc (On Remand), 198 Mich App 577, 581; 499 NW2d 346 (1993) (Koniak III).

         In this case, although it is technically true that plaintiff did not “admit” that the College
Lawyer of the Year award was “fake” or admit in a court document that he “awarded” the “ ‘top
college lawyer’ recognition . . . to himself,” we conclude that these inaccuracies do not alter the
complexion of the affair and would have no different effect on the mind of the reader than would
the literal truth. See Rouch II, 440 Mich at 270. The facts of this case demonstrate that plaintiff
admitted that he commissioned the topcollegelawyers.com website and created the College
Lawyer of the Year award to generate profits. He further conceded that he established the
criteria for the award, chose the persons who comprised the committee that selected the award
recipient, won the award, and then broadcast this as an accomplishment on a marketing website.
Although the article contained slight inaccuracies, we conclude that the sting of the article’s
headline would not have a different effect on a reader than the literal truth. Therefore, the trial
court should have granted defendants’ motion for summary disposition regarding plaintiff’s
defamation claim.3 Koniak III, 198 Mich App at 581.

        Regarding plaintiff’s false light, intentional infliction of emotional distress, and civil
conspiracy claims, the United States Supreme Court “has directed that a statement must be
‘provable as false’ to be actionable.” Ireland v Edwards, 230 Mich App 607, 616; 584 NW2d
632 (1998), quoting Milkovich v Lorain Journal Co, 497 US 1, 19; 110 S Ct 2695; 111 L Ed 2d 1
(1990). This limitation on actionability is a First Amendment limitation. Ireland, 230 Mich App
at 624. When the actionability of a statement is barred by the First Amendment, summary
disposition is appropriate with regard to all of a plaintiff’s claims that are based on the statement.
Id. at 624-625. The challenged statements in this case were not provable as false. Thus, because
plaintiff cannot overcome the First Amendment limitations regarding the statements, the trial
court should have granted summary disposition regarding all of plaintiff’s claims. See id.4

       Finally, although a party facing a motion for summary disposition under MCR
2.116(C)(8) and 2.116(C)(10) should generally be given an opportunity to amend his or her
pleadings as provided by MCR 2.118, see MCR 2.116(I)(5), we conclude that any such




3
 In light of our conclusion that the challenged statements in the article are substantially true, we
need not address defendants’ alternative arguments that they are entitled to summary disposition
on plaintiff’s defamation claim on the basis of the fair-reporting privilege of MCL 600.2911(3)
or because plaintiff failed to sufficiently plead fault in his complaint.
4
  See also Collins, 245 Mich App at 30, 36-37 (holding that defendants were entitled to summary
disposition on a plaintiff’s claims of intentional infliction of emotional distress, false light
invasion of privacy, and conspiracy because the First Amendment limitations applicable to
defamation claims are not exclusive to defamation claims).


                                                 -5-
opportunity to amend would not be justified in this case because our conclusion that the
statements in the article were substantially true renders any possible amendment futile.

      Reversed and remanded for further proceedings consistent with this opinion.



                                                         /s/ Amy Ronayne Krause
                                                         /s/ Kirsten Frank Kelly
                                                         /s/ Michael F. Gadola




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