The trial court in this defamation case erred by striking an attorney’s affidavit and precluding the attorney from testifying, the Michigan Court of Appeals has ruled, finding the case should not have been summarily dismissed.

In Tyler v Findling (Docket Nos. 348231 and 350126), attorney Anna Wright had recorded alleged defamatory remarks during a conversation with attorney David M. Findling, without Findling’s knowledge. Wright then provided the remarks to attorney B.A. Tyler, who filed this civil defamation lawsuit against Findling and his law firm. For purposes of the complaint, Tyler did not specify the substance of the alleged defamatory remarks.

The Oakland County Circuit Court granted a motion in limine and a motion to strike in favor of the defendants (Findling, his law firm and an attorney at the firm). The trial court subsequently granted summary disposition for the defendants.

The Court of Appeals reversed, finding that the order granting the motion to strike the affidavit of Anna Wright had to be vacated.

“A plain reading of [the statute] and the recorded conversation between Findling and Wright excludes Findling’s statements from the protections of the mediation rule,” the Court of Appeals said. “Their conversation was not for the purposes of retaining a mediator, or for considering, initiating, continuing, adjourning, concluding, or reconvening a mediation.”

Judges Anica Letica, Cynthia Diane Stephens and Colleen A. O’Brien were on the appellate panel that issued the decision.

Background

In Docket No. 348231, the plaintiff, B. A. Tyler, appealed three orders:

• one granting a motion to strike and motion in limine in favor of the defendants;

• one granting summary disposition to the defendants under MCR 2.116(C)(10); and

• one denying the plaintiff’s motion for leave to file an amended complaint.

The matter involved the plaintiff’s representation of Samir Warda in a case against Fieger, Fieger, Kenney & Harrington, PC, for malpractice and conversion of attorney fees. Warda allegedly suffered a brain injury and was deemed a protected person by the probate court. Ward’s sister was appointed as his conservator. When Warda’s sister breached her fiduciary duties, the probate court appointed Findling as the receiver for Warda’s estate. The defendant, Mekel Miller, a member of the Findling Law Firm, acted as counsel for receiver Findling. Together, Miller and Findling tried to marshal the assets of Warda’s estate. These assets included two personal injury protection (PIP) auto insurance claims brought on Warda’s behalf by attorney Anna Wright of Atnip & Associates, PLLC. Findling and Miller came in contact with Wright while serving as receiver and counsel to the receiver.

According to the Court of Appeals opinion: “Miller was the first to interact with Wright. Miller testified that in investigating Warda’s suit against the Fieger Firm, she spoke with Fieger attorney, Stephanie Arndt. When deposed, Miller testified that during that conversation, she shared that plaintiff had been hostile to Findling and Arndt responded that plaintiff was similarly hostile toward Fieger. Arndt suggested to Miller that there may have been a personal connection between plaintiff and Warda. Miller could not recall her conversation with Arndt verbatim, only that she was left with the impression that Warda had a criminal history and some drug use, that plaintiff was hostile and aggressive, and there was a question of whether plaintiff had a personal relationship with Warda. Miller testified that she made further inquiry into whether there was any published criminal history or disciplinary action involving plaintiff, but found none. It was from this information base that Findling spoke to Wright in May 2017. … Findling allegedly uttered a defamatory statement about plaintiff to Wright, in May 2017. Wright recorded the statement without Findling’s knowledge and shared it with plaintiff.”

During discovery, the contents of the alleged defamatory communication between Findling and Wright came to light. The defendants filed motions in limine and motions to strike the communication, asserting mediation confidentiality, among other things. The trial court granted the motion, finding the statements were made within a confidential and privileged environment under MCR 2.412 (Mediation Communications; Confidentiality and Disclosure).

The defendants then filed a motion for summary disposition, arguing that under MCR 2.116(C)(10), once the trial court struck Wright’s tapes and excluded her testimony, there was no material question of fact regarding defamation or any other cause of action. The plaintiff then filed a motion to amend to assert additional defamatory communications made to another attorney at Atnip & Associates, PLLC, in August 2017. The trial court granted summary disposition to the defendants under MCR 2.116(C)(8), finding the proposed amendment failed to plead the content of the defamatory communication to Atnip with specificity.

In Docket No. 350126, the plaintiff filed a second lawsuit based on the Atnip communication. The suit was summarily dismissed.

The plaintiff appealed.

No Confidential Communication

On appeal, the plaintiff argued the trial court abused its discretion when granting the defendants’ motion to strike Wright’s affidavit and motion in limine.

“We agree,” the Court of Appeals said, noting that the expectation of confidentiality belongs to mediation parties.

In this case, the defendant had attended the May 2017 mediation as a receiver - not a mediation party, the Court of Appeals explained. “Findling was a nonparty mediation participant, not a mediation party. Findling identified the PIP action as a receivership asset and attended the mediation to be informed of the progress of the action. It was not until October 2017 that the probate court replaced Warda with Findling as first party plaintiff in the PIP case.”

In addition, the defendant’s statements to Wright were not mediation communications under MCR 2.412 (B)(2), the Court of Appeals explained. “MCR 2.411 clearly envisions the mediation process beginning when the mediator meets with the parties. The facts, as presented, place Findling’s statements outside the mediation process. Sitting in a room designated for plaintiff neither made him the party plaintiff nor did his presence in that room start the mediation. … Their conversation was not for the purposes of retaining a mediator, or for considering, initiating, continuing, adjourning, concluding, or reconvening a mediation.”

Next, the Court of Appeals rejected the defendants’ attorney-client privilege argument. “Wright’s affidavit and testimony were not otherwise inadmissible as privileged attorney-client communications. The order appointing Findling as Receiver granted Findling the ordinary powers under MCL 600.5201 et seq. to identify and harness the assets of the estate so as to carry out the probate court’s orders. His appointment as Receiver did not establish an attorney-client relationship between him and Wright. Again, the order making Findling the real party in interest in the PIP case did not issue until October 2017 which was well after the May 2017 statements. Once Findling was substituted as the real party in interest, he had authority to initiate a suit in his own name and to select counsel. … After his substitution, on December 14, 2017, Findling sent Wright’s employer, Atnip & Associates, PLLC, an e-mail stating, ‘I have not retained you and you are not my attorney.’ There is no evidence to support defendants’ position that Findling’s statements to Wright were protected from disclosure by the attorney-client privilege.”

Accordingly, “we conclude that the trial court abused its discretion in granting defendants’ motion to strike Wright’s affidavit and motion in limine to preclude her testimony based on a finding that Findling’s statements to Wright were confidential and inadmissible mediation communications,” the Court of Appeals said. “The order striking Wright’s affidavit and ordering her testimony inadmissible evidence is thereby vacated.”

Other Arguments

The plaintiff also claimed the trial court erroneously granted summary disposition to the defendants under MCR 2.116(C)(10).

“We agree,” the Court of Appeals said. “Given this Court’s conclusion that the trial court abused its discretion in granting defendants’ motion to strike and motion in limine, we reverse the trial court’s grant of summary disposition to defendants under MCR 2.116(C)(10) and remand the matter for the trial court to consider Wright’s affidavit and testimony.”

But the Court of Appeals rejected the plaintiff’s argument that the trial court wrongly denied the motion to amend his complaint.

“The original pleading involved a claim that Findling made defamatory statements about plaintiff to Wright in May 2017 that plaintiff was possibly involved in criminal or drug activity with a client,” the Court of Appeals observed. “In contrast, the amended pleading involved a claim that Findling made defamatory statements about plaintiff of an unknown nature to Atnip sometime after May 2017. Outside of the two claims involving defamation, none of the other factors in MCR 2.118(D) are present. … The trial court properly identified plaintiff’s motion to amend as a supplemental pleading.”

In conclusion, the Court of Appeals said the plaintiff seemed to argue that if his defamation claims fail, his intentional infliction of emotional distress (IIED) claim was not barred by the statute of limitations. “The trial court did not address plaintiff’s IIED claim individually, but rather dismissed plaintiff’s first Complaint in its entirety based on an analysis of the defamation claim under MCR 2.116(C)(10). We decline to address this issue in the first instance and direct the trial court to address it on remand.”

After the Court of Appeals opinion was issued, the defendants filed a motion for reconsideration, which was denied.

The case has since been appealed to the Michigan Supreme Court. The high court recently issued an order granting the State Bar of Michigan Alternative Dispute Resolution Section’s motion to file an amicus brief in the case.