Preview:

STATE OF MICHIGAN
COURT OF APPEALS


RICHARD F. BARNETT, ROSE CAPISTRAN, KENNETH E. RAASCH and THE THOMAS KINCADE COMPANY, Plaintiffs-Appellants, v NORMAN YATOOMA & ASSOCIATES, a/k/a YATOOMA & YATOOMA, a/k/a YATOOMA & ASSOCIATES, a/k/a YATOOMA LEGAL GROUP, NORMAN YATOOMA, JOSEPH EJBEH and CYNTHIA EJBEH, Defendants-Appellees, and THOMAS SHEPPARD, Defendant.

UNPUBLISHED March 20, 2007

No. 272126 Oakland Circuit Court LC No. 06-072819-CZ

Before: Markey, P.J., and Murphy and Kelly, JJ. PER CURIAM. Plaintiffs appeal by right the trial court's order granting summary disposition to defendants in this eavesdropping case. We affirm. Plaintiffs first argue that the trial court erred in granting summary disposition pursuant to MCR 2.116(C)(10) before the completion of discovery. Plaintiff raises this issue for the first time on appeal; therefore, it is unpreserved. Polkton Twp v Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005). Unpreserved issues are reviewed for plain error. To avoid forfeiture under the plain error rule, an error must have occurred, it must have been plain, i.e., clear or obvious, and it must have affected substantial rights. Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000). "A motion for summary disposition under MCR 2.116(C)(10) is premature if discovery has not closed, unless there is no fair likelihood that further discovery would yield support for the nonmoving party's position." St Clair Medical, PC v Borgiel, 270 Mich App 260, 271; 715 -1-


NW2d 914 (2006). The party opposing summary disposition cannot simply state that summary disposition is premature without identifying a disputed issue and supporting that issue with independent evidence. Id. In this case, plaintiffs did not argue below that there was a fair likelihood that further discovery would yield support for their position. Instead, plaintiffs argued that under the undisputed facts of the case, defendants were liable for eavesdropping because they transmitted the live feed, employed Esquire Deposition Services to transmit the feed, and installed Livenote and the Internet feed without plaintiffs' consent. On appeal, plaintiffs argue that depositions of the witnesses who testified at the arbitration hearing and the members of the arbitration panel would lead to evidence supporting their argument that the arbitration hearing was private. A conversation is private if it is "`intended for or restricted to the use of a particular person or group or class of persons . . . [and is] intended only for the persons involved.'" Dickerson v Raphael, 222 Mich App 185, 193; 564 NW2d 85 (1997), rev'd on other grounds 461 Mich 851 (1997), quoting Webster's Third New International Dictionary, Unabridged Edition (1966). The testifying witnesses were participants to the conversation at issue, and the intent of the conversation's participants is crucial to the determination of privacy. Moreover, because a number of those witnesses are plaintiffs in this case, it seems likely that their depositions would have yielded evidence that they intended the conversation to be private. Nevertheless, plaintiffs did not argue below that there was any such evidence in their favor and, instead, presented their arguments on the basis of what they considered to be the undisputed facts of the case. Given plaintiffs' position below, we conclude that it was not plain error for the trial court to grant summary disposition pursuant to MCR 2.116(C)(10) prior to the completion of discovery. Next, plaintiffs argue the trial court erred in granting summary disposition to defendants. We review de novo whether the trial court properly granted summary disposition. Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004). We consider the entire record presented to the trial court at the time the motion was made in a light most favorable to the nonmoving party. Id. at 278; Pe

Download RICHARD F BARNETT V NORMAN YATOOMA & ASSOC.pdf

Michigan Law