Where defamation counts have been brought over emails sent to owners of condominium units, a motion for summary disposition filed by the defendants should be allowed in part and denied in part.
“Townsend Park is a condominium subdivision located in Van Buren Township. The subdivision is divided into multiple ‘phases.’ The first phase was substantially built and developed by Blue Victoria, LLC doing business as S.R. Jacobson Development (‘SR Jacobson’). When the first phase was nearly completed, SR Jacobson sold the undeveloped units in Phase 2 of the project (67 undeveloped units) and three remaining units in Phase 1 to the Plaintiff Infinity Homes (‘Plaintiff’) via a Purchase Agreement dated September 21, 2020. Along with the Purchase Agreement, the parties also executed a Partial Assignment of Development Rights in which SR Jacobson assigned all of its development rights for Phase 2 to Plaintiff but reserved ‘all rights and obligations as the ‘Developer’ under the Master Deed [and] the Act with respect to Phase 1.’
“Defendant Townsend Park Condominium Association (the ‘Association’) is responsible for the management, maintenance, operation, and administration of Townsend Park. Defendant Whitehall Property Management, LLC, doing business as Whitehall Community Management (‘Whitehall’), is the property manager for Townsend Park. As a part of Whitehall’s property management responsibilities, its employees (specifically senior portfolio manager Christine Metiva) acted as a liaison between the condominium co-owners and the various builders and maintenance companies working at Townsend Park.
“On November 28, 2022, Metiva received an email from a dissatisfied co-owner that attached numerous photos documenting various unaddressed maintenance issues around Townsend Park. One of the photos attached to the email was a photo of Plaintiff’s sign that the co-owner labeled ‘ugly ‘sign’ that looks like an advertisement (no new houses in phase 2 this sign is irrelevant.’ On December 21, 2022, Metiva forwarded the photos, including the one of the ‘ugly’ sign, to Eric Teichner, the Director of Operations at Build Master Construction Services, along with a service request to provide maintenance around Townsend Park. A few days later, an employee from Build Master removed and destroyed Plaintiff’s sign and noted in an email to Ms. Metiva, ‘Yes, we removed one [sign] like in the photo.’ Plaintiff’s complaint includes causes of action for negligent destruction of property (Count II) and conversion (Count III) related to the removal and destruction of the sign.
“Plaintiff also alleges that Defendants made defamatory statements in two separate communications. In this first communication (Count I), Whitehall sent an email to all Townsend Park co-owners in preparation for an upcoming Association meeting in which Whitehall said they made repeated requests to Infinity Homes to address concerns regarding the common areas, and Infinity Homes ignored the requests. The email also solicited ‘resident concerns’ because the Defendants were compiling a list for ‘legal review and consideration.’ The second communication (Count IV) was an email from Christina Metiva to Plaintiff’s employee, Liz Thomas, that included Build Master in which Metiva suggested that Plaintiff review the Condominium Act because ‘it would behoove you to understand this information as it would eliminate or at best minimize your continued exposure to liability.’
“The Defendants move for summary disposition as to all four counts included in the Complaint pursuant to MCR 2.116(C)(8) and (10).
“Here, the Defendants have alleged that statements in the email to the co-owners cannot be the basis for a defamation claim because (1) they are true, (2) they are not objectively verifiable statements, (3) there is no evidence of the harm caused by these statements, and (4) the statements are protected by a qualified privilege.
“Here, the first two statements at issue, both of which relate to the Plaintiff’s failure to perform maintenance in the common areas despite repeated requests to do so, are objectively verifiable. However, the third statement, which is simply a request for additional input from residents, is not. Because this third statement is not ‘provable as false’ as required by Michigan caselaw, it cannot form the basis for a defamation claim. Accordingly, summary disposition is appropriate as to the third statement at issue in the Defendants’ communication to the condominium co-owners.
“In conclusion, there are material issues of fact with respect to the first two statements in Count I Defamation, specifically the truth of the statements at issue, the ‘actual malice’ of the Defendants in making the statements, and the pecuniary harm caused by the statements. However, the third allegedly defamatory statement (in which the Defendants solicit complaints for ‘legal review’) is not provable as false and cannot form the basis for Plaintiff’s defamation claim.”
Infinity Homes & Co. LLC v. Whitehall Prop. Mgmt. LLC; MiLW 10-108062, 18 pages; Oakland Circuit Court; Valentine, J.
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