Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  April 10, 2015                                                                    Robert P. Young, Jr.,
                                                                                               Chief Justice

  150014                                                                             Stephen J. Markman
                                                                                         Mary Beth Kelly
  SCOTT BOUIS,                                                                            Brian K. Zahra
           Plaintiff-Appellant,                                                   Bridget M. McCormack
                                                                                        David F. Viviano
  v                                                       SC: 150014                Richard H. Bernstein,
                                                                                                    Justices
                                                          COA: 321157
                                                          Clinton CC: 13-011111-NZ
  JENNIFER JO MUELLER,
             Defendant-Appellee.
  _________________________________________/

          On order of the Court, the application for leave to appeal the August 4, 2014 order
  of the Court of Appeals is considered, and it is DENIED, because we are not persuaded
  that the questions presented should be reviewed by this Court.

         MARKMAN, J. (dissenting).

          I respectfully dissent from this Court’s order denying plaintiff’s application for
  leave to appeal and instead would remand to the trial court for further consideration of
  plaintiff’s claim of defamation. In my judgment, neither the trial court nor the Court of
  Appeals has accorded plaintiff his full day in court on this claim.

          The two parties have been engaged in a dispute concerning whether on their
  second date plaintiff sexually assaulted defendant. On their first date four days earlier,
  the parties had engaged in consensual sexual relations. The prosecutor declined to charge
  plaintiff, although defendant did obtain a personal protection order against plaintiff
  arising from repeated text messages disputing her allegations.

          Plaintiff eventually sued defendant for defamation arising out of her statements to
  investigators and friends alleging the sexual assault. After discovery, the trial court
  granted summary disposition in defendant’s favor, ruling that defendant’s allegations
  made to the police and prosecutors were protected by either absolute or qualified
  privilege, or both. I agree with this decision. However, the trial court failed to address
  the merits of the defamation action arising from defendant’s nonprivileged statements to
  her friends, and the Court of Appeals denied leave to appeal.

         “At common law, words charging the commission of a crime are defamatory per
  se, and hence, injury to the reputation of the person defamed is presumed to the extent
                                                                                                               2

that the failure to prove damages is not a ground for dismissal.” Burden v Elias Bros Big
Boy Restaurants, 240 Mich App 723, 727-728 (2000). “Where defamation per se has
occurred, the person defamed is entitled to recover general damages in at least a nominal
amount.” Id. at 728. Furthermore, and particularly relevant to this case, a plaintiff can
sustain a defamation action when the alleged defamatory communication can be shown
with sufficient particularity to be “of and concerning the plaintiff.” See Weiss v
Whittemore, 28 Mich 366, 371-372 (1873) (stating that facts describing the plaintiff as
“the agent for the sale of the Steinway pianos” were “sufficient to lay the foundation for
the allegation that the words were published of and concerning the plaintiff in respect to
his said business”).

        Defendant’s alleged communications to friends that she had been sexually
assaulted potentially constituted defamation per se because they charged plaintiff with the
commission of a crime. Although plaintiff was denied an opportunity to depose
defendant’s friends before the trial court granted summary disposition, there is evidence
that they were told by defendant that she had been sexually assaulted by plaintiff. One of
these individuals, “a trusted male friend,” later served the personal protection order on
plaintiff. At the time these communications first occurred, defendant had knowledge
only of plaintiff’s first name, his status as a law student temporarily on leave from school,
and the location of the apartment complex where he lived and to where the parties had
proceeded on their second date. Those communications, if they can be established, seem
sufficient to establish that they were “of and concerning” plaintiff because a simple
investigation could have uncovered, and indeed did shortly thereafter uncover, plaintiff’s
identity.

       To be quite clear, I have no idea what did or did not occur on the parties’ second
date, and there has been no judicial determination of any kind in this regard. All that I do
know is that plaintiff is not prepared to drop this matter. He has filed a civil lawsuit
alleging defamation, and he has apparently set forth the prerequisites for proceeding with
such a lawsuit. If so, plaintiff is entitled to judicial consideration and resolution of the
aspects of his claim that concern nonprivileged communications. One cannot under the
law engage in a sexual assault, and one cannot under the law falsely accuse another of
engaging in a sexual assault. I would remand this case to the trial court for further
proceedings.

       MCCORMACK and BERNSTEIN, JJ., join the statement of MARKMAN, J.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         April 10, 2015
        t0407
                                                                             Clerk
