Preview:

STATE OF MICHIGAN COURT OF APPEALS

AMY LYNCH, Plaintiff-Appellant, v COUNTY OF ARENAC, GARY RAPP, individually and in his official capacity, ROBERT J. LESNESKI, individually and in his official capacity, a/k/a BRONCO, and JOHN/JANE DOE, Defendants, and JOHN CURCIO, Defendant-Appellee.

UNPUBLISHED July 12, 2011

No. 296775 Arenac Circuit Court LC No. 09-010966-NZ

Before: MARKEY, P.J., and FITZGERALD and SHAPIRO, JJ. PER CURIAM. Plaintiff appeals as of right from that part of the trial court's order granting summary disposition in favor of defendant-Appellee John Curcio. For the reasons stated below, we affirm. According to plaintiff's complaint, she was at a meeting of the Arenac County Board of Commissioners when Curcio entered with a video camera and assaulted her with it. Allegedly, the camera lens was covered but the audio recording was on. Curcio was tried in district court on a misdemeanor assault charge. Plaintiff testified against him during that trial, and part of the proofs against him included the audio tape that (according to plaintiff) indicated he called her "slut" during the assault. Curcio was found guilty but the conviction was reversed, apparently because he had inadequate counsel. Defendant Gary Rapp was assigned as special prosecutor to handle the retrial of the assault charge against Curcio. Because the original could not be located for use in a second trial, Rapp requested a copy of the audio tape from Curcio. Rapp thereafter

-1-

decided to drop the charges against Curcio and instead brought perjury charges against plaintiff and others who had testified in the first assault trial.1 In January 2006, defendant Detective Robert Lesneski administered a polygraph examination to plaintiff in connection with the perjury charge. According to plaintiff's complaint in the present case, Detective Lesneski admitted in his police report that he had disclosed to Curcio the results of that examination. Rapp also disclosed the results of her polygraph examination to Curcio. Curcio distributed the results of the polygraph examination to the public at township and county board of commissioner meetings in October 2007. The results also appeared in the January 2008 edition of the newsletter "Arenac County Town Crier," which was distributed to Arenac County voters. Plaintiff claimed that she suffered "mortification, humiliation, embarrassment, disruption of lifestyle and severe emotional distress" as a result of the dissemination of the results of the polygraph examination. Plaintiff's complaint contained counts for violation of public policy, specifically the Forensic Polygraph Examiner's Act (FPEA), MCL 338.1701 et seq., intentional infliction of emotional distress, false light invasion of privacy; defamation,2 and gross negligence. The government defendants3 brought motions for summary disposition in which Curcio concurred. Following a hearing on the motions, the court found that the FPEA did not provide for a private cause of action. Regarding the false light count, the court found that the alleged information Curcio disseminated--that appellant failed her polygraph examination--"is not false and did not place the plaintiff in a false light; rather, it reflects truthfully her actual polygraph performance." Regarding the claim for intentional infliction of emotional distress, the court concluded that Curcio's conduct "may well be petty, it may well be despicable, but there is no cause of action in this state for despicable conduct, at least not under intentional infliction of emotional distress." Finally, the court found that there was no cause of action for gross negligence against Curcio because all the allegations under that count related to either Rapp or Lesneski. The court entered orders dismissing all of plaintiff's claims. Plaintiff appeals only the trial court's dismissal of her claims against Curcio. She first argues that the trial court erred in ruling that the FPEA does not provide a private cause of action for violation of the act. We review de novo a trial court's decision to grant or deny a motion for summary disposition. Spiek v Dep't of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). Statutory interpretation is a question of law that we also consider de novo on appeal. Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008).

1 2 3

Plaintiff was ultimately acquitted of perjury by a jury on April 13, 2007. Plaintiff conceded that the expiration of limitations barred her defamation count.

The government defendants included Arenac County, Rapp, Detective Lesneski, and John/Jane Doe.

-2-

The trial court did not err in concluding that the FPEA does not provide a private cause of action. MCL 338.1728(3) provides: Any recipient of information, report or results from a polygraph examiner, except for the person tested, shall not provide, disclose or convey such information, report or results to a third party except as may be required by law and the rules promulgated by the board in accordance with section 7 of this act. The act's purpose is: [T]o license and regulate persons who purport to be able to detect deception, verify truthfulness, or provide a diagnostic opinion of either through the use of any device or instrumentation as lie detectors, forensic polygraphs, deceptographs, emotional stress meters or similar or related devices and instruments; to create a state board of forensic polygraph examiners with licensing and regulatory powers over all such persons and instruments; to provide for administrative proceedings and court review; to establish minimum standards and requirements for all such instrumentation or devices and to prohibit the use of instruments or devices which do not meet minimum standards and requirements; and to provide for injunctions and penalties. [1972 PA 295.] The act includes two penal provisions. MCL 338.1727 provides: If any person violates the provisions of this act, the board, in the name of the people of the state, through the attorney general, may apply to a court of competent jurisdiction for an order enjoining the violation or for an order enforcing compliance with this act. Upon the filing of a verified petition in the court, the court or any judge thereof, if satisfied by affidavit or otherwise that such person has violated or is violating this act may issue a temporary injunction, without notice or bond, enjoining the continued violation. If it is established that the person has violated or is violating the injunction, the court or any judge thereof may summarily try and punish the offender for contempt of court. Proceedings under this section shall be in addition to, and not in lieu of, all other remedies and penalties provided by this act. In addition, the act provides that "a person violating this act or falsely stating or representing that he or she is or has been an examiner or intern is guilty of a misdemeanor." MCL 338.1729(1). As can be seen, the FPEA does not expressly create a private cause of action for violations of its provisions. Thus, the question becomes whether the trial court correctly found that public policy did not require a finding that the statutory scheme implies a private cause of action. While a cause of action for money damages will not be implied against a governmental entity, when a private defendant is involved, a cause of action may be found under certain circumstances. Lash v Traverse City, 479 Mich 180, 194; 735 NW2d 628 (2007); Gardner v Wood, 429 Mich 290, 302; 414 NW2d 706 (1987); Pompey v Gen Motors Corp, 385 Mich 537, 552-553; 189 NW2d 243 (1971).

-3-

In Gardner, the Michigan Supreme Court held that a cause of action could be created to redress a statutory violation where the purpose of the statute at issue was: "`. . . found to be exclusively or in part (a) to protect a class of persons which includes the one whose interest is invaded, and (b) to protect the particular interest which is invaded, and (c) to protect that interest against the kind of harm which has resulted, and (d) to protect that interest against the particular hazard from which the harm results.'" [Gardner, 429 Mich at 302, quoting Longstreth v Gensel, 423 Mich 675, 692-693; 377 NW2d 804 (1985), quoting 2 Restatement Torts, 2d,

Download AMY LYNCH V COUNTY OF ARENAC.pdf

Michigan Law