877 N.W.2d 736 (Mich.App. 2015), 319810, Hope-Jackson v. Washington

Docket Nº:319810
Citation:877 N.W.2d 736, 311 Mich.App. 602
Opinion Judge:Kurtis T. Wilder, P.J.
Party Name:DORIS HOPE-JACKSON, Ed.D., Claimant-Appellee/Cross-Appellant, v. SHERI WASHINGTON, Respondent-Appellant/Cross-Appellee, and WILLOW RUN COMMUNITY SCHOOLS, Respondent
Attorney:For DORIS HOPE-JACKSON, ED. D., Claimant-Appellee-Cross Appellant: DARRYL SEGARS, PONTIAC, MI. For SHERI WASHINGTON, Respondent-Appellant-Cross Appellee: SCOTT L. MANDEL, LANSING, MI.
Judge Panel:Before: WILDER, P.J., AND SERVITTO AND STEPHENS, JJ.
Case Date:August 18, 2015
Court:Court of Appeals of Michigan
 
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Page 736

877 N.W.2d 736 (Mich.App. 2015)

311 Mich.App. 602

DORIS HOPE-JACKSON, Ed.D., Claimant-Appellee/Cross-Appellant,

v.

SHERI WASHINGTON, Respondent-Appellant/Cross-Appellee,

and

WILLOW RUN COMMUNITY SCHOOLS, Respondent

No. 319810

Court of Appeals of Michigan

August 18, 2015

Page 737

[Copyrighted Material Omitted]

Page 738

Washtenaw Circuit Court. LC No. 12-001139-CZ.

For DORIS HOPE-JACKSON, ED. D., Claimant-Appellee-Cross Appellant: DARRYL SEGARS, PONTIAC, MI.

For SHERI WASHINGTON, Respondent-Appellant-Cross Appellee: SCOTT L. MANDEL, LANSING, MI.

Before: WILDER, P.J., AND SERVITTO AND STEPHENS, JJ.

OPINION

Page 739

[311 Mich.App. 608] Kurtis T. Wilder, P.J.

Respondent Sheri Washington appeals as of right the circuit court's order granting the motion of claimant, Doris Hope-Jackson, to confirm an arbitration award (the postremand order) regarding claimant's defamation claim and denying respondent's

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motion to vacate that award. Respondent also challenges an earlier order by the circuit court vacating a portion of one of the arbitrator's previous orders (the preremand order) that both dismissed claimant's defamation claim because the limitations period had expired and remanded the case for further proceedings. We affirm in part, but vacate the portion of the arbitrator's postremand order awarding $140,000 in exemplary damages to claimant.

I

The instant matter arises out of a multicount complaint by claimant, who is the former superintendent of Willow Run Community Schools (Willow Run), against Willow Run and respondent, who was a school board member during claimant's tenure. Claimant made numerous allegations in Washtenaw County Trial Court Docket Number 10-680-DC, including breach of contract, sexual harassment, and violations of the Whistleblowers' Protection Act, MCL 15.361 et seq., due process, the Employee Right to Know Act, MCL 423.501 et seq., the Persons With Disabilities Civil Rights Act, MCL 37.1101 et seq., and the Civil Rights Act, MCL 37.2101 et seq., all of which were submitted to arbitration and ultimately dismissed. Relevant to this appeal is claimant's defamation claim against respondent arising from posts made to a website: willowrunwatchdogs.com .

[311 Mich.App. 609] Initially, in the preremand order, the arbitrator dismissed the defamation claim, ruling that it was time-barred. The arbitrator found that the challenged posts on the website were made from June 18, 2008, to June 15, 2009. Moreover, the arbitrator found that because the complaint was filed on June 22, 2010, the one-year period of limitations had already run and any claim based on these allegedly defamatory statements was time-barred.

After dismissing the defamation claim, however, the arbitrator ordered supplemental briefing on the question whether the period of limitations was tolled under MCL 600.5855 if respondent was the administrator of the website and concealed her involvement with it. The record demonstrated that at a 2010 hearing for claimant before she was terminated from Willow Run, a witness testified that she believed respondent was the website's administrator, but respondent nevertheless testified that she was not. Ultimately, the arbitrator took judicial notice that respondent was the website's administrator and found that respondent had actively concealed her administrative role. Regardless of respondent's concealment of her identity, however, the arbitrator again concluded that the period of limitations had not been tolled, reasoning that the period of limitations continued to run because claimant was aware she had a possible cause of action for defamation at the time the posts were made.

The arbitrator also held respondent in contempt of court for repeatedly making false statements about her role as the website's administrator. Respondent paid $12,500 in sanctions to claimant, and the parties agreed that the payment satisfied the portion of the arbitration order requiring sanctions.

[311 Mich.App. 610] Claimant filed a complaint in the circuit court (Washtenaw County Trial Court Docket Number 12-1139-CZ) to vacate the arbitrator's preremand order dismissing her claims. The circuit court ruled that dismissing the defamation claim regarding the posts on the website was a clear error of law given the arbitrator's findings about respondent's concealment of her role as administrator. The circuit court remanded

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the matter to the arbitrator for consideration of that claim alone.

On remand, the arbitrator issued an interim opinion and order, finding that the administrator had made at least two statements that were defamatory per se and that they were made with actual malice. The arbitrator further found that some of the statements made by a blogger identified as " WRCAT" were also defamatory and that a question of fact existed regarding whether WRCAT was also respondent. On this question of fact concerning the identity of WRCAT, the arbitrator permitted the parties to offer additional evidence. Next, the arbitrator requested briefing and oral argument regarding whether statements against professional reputation can be defamation per se or whether defamation per se is limited to statements about criminal conduct and lack of chastity. Finally, the arbitrator ordered oral argument on damages, particularly whether exemplary or punitive damages were permitted and whether claimant had requested a retraction.

In the postremand order, the arbitrator found claimant's testimony to be " generally credible" and respondent's testimony to be " self-serving, evasive when convenient, and clear and decisive when it served her purposes." The arbitrator also found that posts on the website that were identified as having been made by the administrator, " Admin," and " WRCAT" were actually [311 Mich.App. 611] made by respondent. The arbitrator found, consistently with the preremand order, that claimant's termination was not a violation of her contract and that the defamation did not contribute to the termination. The arbitrator ruled that while defamation per se does not generally extend to statements regarding business interests, some of respondent's statements constituted allegations of a crime and therefore were defamation per se. In a review of each statement made on the website pertaining to claimant the arbitrator concluded that [d]efamation per se can be found on page 3 and 7-8 in an article entitled " Google Me." The allegations on these pages are particularly concerning for the Arbitrator. Statements that Dr. Jackson " has abused her authority as superintendent; disrespected parents to the highest degree; violated contracts and state and federal laws; [and] threatened employees" will be considered defamatory. More particularly, the statements that Claimant violated state and federal laws are made with actual malice and sufficient in the Arbitrator's mind, especially when viewing the website as a whole, to qualify as accusations of a crime and, accordingly, defamation per se. Similar statements can be found on page 37 in an article entitled " Have white employees been victims of reverse discrimination in WR?" 1 [Second alteration in original.]

Regarding the statements (1) " that Claimant 'robs Willow Run blind' by 'boosting [Larry and Laconda's]2 big salaries'" and (2) " that Claimant is 'giving away [Willow Run's] $$$[sic]' by '[finding] a way to get Laconda a raise,'" the arbitrator, citing Hodgins v Times Herald Co, 169 Mich.App. 245, 253; 425 N.W.2d 522 (1988), found that these statements were not accusations [311 Mich.App. 612] of a crime, but instead were strongly worded opinions and political speech. (Alterations in original.) The arbitrator concluded that the remaining passages cited by claimant were not defamation for one or more of the following reasons: (1) respondent did not make

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the statements, (2) the statements were not about claimant, (3) the statements were hyperbole, strongly worded opinion, or political speech, or (4) the statements did not contain actual malice.

The arbitrator awarded $360,000 in per se damages and $140,000 in exemplary damages. Respondent had testified at the 2010 pretermination hearing for claimant: I recall having a meeting with Dr. Jackson it may -- maybe August, Septemberish, I'm not sure of the exact date but I think that period of time is close. Dr. Jackson had a prepared agenda for this particular meeting, a rather long agenda. And towards the bottom of that agenda there was the name " watchdogs" . . . . [S]he said that there were some employees that were having difficulty with finding new employment because of what was posted on that web site and . . . they're going to sue . . . .

And she had asked me if I could talk to whoever is responsible for the site and ask them to remove, I guess...

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