A 3-year-old lawsuit claiming the developer of BayView in Suttons Bay was defamed by news coverage in the Leelanau Enterprise has been dismissed.

Circuit Court Judge Philip E. Rodgers Jr. granted a motion July 1 from newspaper attorney Mark G. Clark seeking immediate dismissal of the suit filed by Marcus Yono, the Livingston Building Company, Suttons Pointe Development and Leelanau Hills Development.

At issue were articles published in February and March of 2007 in which Yono claimed the newspaper reported seven falsehoods. These included calling Yono the “developer” of BayView; that contractors and subcontractors had filed at least 76 liens against BayView properties; that Yono paid the Village of Suttons Bay $1.3 million as Suttons Pointe’s share of a village sewer system; and that he was the “target of a criminal investigation” downstate.

Yono claimed that the stories were published negligently and/or were part of reporter Eric Carlson’s “malicious and intentional” effort to portray him in a negative light.

“There was very little question in my mind that the Enterprise would prevail,” Clark said after the decision. “This suit was filed to sway coverage concerning this particular development. It should have never been brought in the first place.”

Clark referred to the court action as a SLAPP lawsuit intended to censor, intimidate and silence critics. SLAPP stands for strategic lawsuit against public participation.

“It’s an effort to quell matters of public concern which are publicized in the media,” he said.

Michigan has no anti-SLAPP law. However, there is legislation proposed that would impose sanctions for cases filed improperly for the purpose of attempting to quell comment on matters of public concern, he said.

In defense of the newspaper, Clark presented evidence in the form of affidavits or depositions from witnesses who clarified or refuted each of Yono’s claims against the Enterprise.

In a deposition, Michigan State Police Detective Sean Furlong stated that he was quoted accurately by Carlson. However, he had responded to a compound question asking if Yono and his companies were being investigated in connection with a fraudulent release of lien. Furlong said in the disposition that a crime had been committed, but he had no individual suspects. Yono was never interviewed by Furlong. The Enterprise contacted Furlong after receiving a demand for a retraction from Yono’s attorney, and the statement was clarified in the next edition of the Enterprise.

Based on information from retired Register of Deeds Barbara Kirt, Carlson reported that subcontractors or suppliers for the BayView project had filed at least 76 liens against the properties.

A follow-up article, also published the next week, clarified that the 76 liens against the property were filed by far fewer contractors. The liens were filed separately for each of the dozens of condominium units, Kirt said.

The Enterprise reported in February 2007 that Yono had paid $1.3 million toward expansion of the village sewer system and that the developer had no outstanding financial obligation to the village for sewer expansion. The information was attributed to then-Suttons Bay Village manager Chuck Stewart.

In a sworn affidavit offered as evidence, Stewart indicated that he had “inadvertently” told Carlson $1.3 million when in fact Yono had paid $2.2 million toward the village sewer expansion.
This too, was corrected in the newspaper.

Yono’s suit claimed that he had been defamed by statements in a March 2007 article in which a contractor claimed to be owed $43,000 for work on BayView. He quoted contractor James Ramsberger as saying, “Everybody expected wonderful things of this project, but right now Yono is robbing families.”

In a November 2007 affidavit Ramsberger confirmed that Carlson had accurately quoted him in the story.

“The basis for the lawsuit was that a newspaper must be responsible for inaccurate or vague statements made by public officials or created by public records,” Enterprise publisher Alan Campbell said. “No newspaper could survive under such as standard, and free speech, the basis for a free country, would suffer.”

Enterprise lawyer Clark argued that newspaper articles about the tax liabilities and business activities surrounding “the largest real estate development project in the history of Suttons Bay” were matters of public concern and that the newspaper is provided the highest level of First Amendment protection.

As such, the burden of proof was on Yono, a limited-purpose public figure, who had to prove not only that the statements included in the publication were false, but they were made with “actual malice” by Carlson.
In dismissing the case, Rodgers made the following observation:

“Being a developer is not an inherently bad thing. But somehow it has taken on a negative connotation,” he said.

Campbell was pleased with dismissal of the lawsuit.

“This has been a very difficult process for the Leelanau Enterprise, and I am certainly glad it’s over,” he said. “I felt from the beginning that we were sued for doing our job. We, as a staff, felt an obligation to look deeply into the BayView development not only when things went bad, but starting when it was on the drawing board. That is what staff writer Eric Carlson did. BayView is still a very important story for the future of Suttons Bay Village and all of Leelanau County.”

The lawsuit was unusual in that it was appealed twice even before the merits of the case were considered.
It was originally filed not in Leelanau County but in Livingston County which served as home base for Yono’s businesses. The newspaper argued successfully that Leelanau County was the proper venue for the case in circuit and appeals courts. The decision was appealed all the way to the state Supreme Court, which affirmed the venue at least partially to help define venue for electronic publishing.

The motion for dismissal was considered after a court-ordered mediation had failed to reach a settlement. An evaluation by a 3-member panel later determined that “zero” dollars should be awarded to Yono.

“That says (the panel) didn’t think much of the plaintiff’s case,” Clark explained. “That’s most unusual.”
Calls made to Michael Ostrosky, Yono’s third attorney from the second law firm acting on the developer’s behalf in the case, were not answered.