Twila C Leigh v. Alpha Kappa Alpha Sorority Inc ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
TWILA C. LEIGH, UNPUBLISHED
October 6, 2015
Plaintiff-Appellant,
v No. 323677
Oakland Circuit Court
ALPHA KAPPA ALPHA SORORITY, INC., LC No. 2013-137113-NZ
CHARLENE TRUITT NELSON, CASSANDRA
LEWIS, and ANTONIA WATKINS,
Defendants-Appellees.
Before: GLEICHER, P.J., and SAWYER and MURPHY, JJ.
PER CURIAM.
Plaintiff Twila Leigh felt aggrieved when her sorority withdrew her membership rights
and interrupted her term as local chapter president during an investigation into hazing and
improper chapter operations. Leigh was further offended when the sorority’s investigation led to
new elections for chapter leadership, and the chapter’s membership did not reelect her. She filed
suit against the sorority, the sorority’s regional director, her sorority chapter’s prior president,
and a chapter member who had lodged a complaint against her, charging a series of contractual
breaches, negligent actions, fraudulent misrepresentation, conspiracy, and defamation that
allegedly caused her financial and emotional harm. The circuit court summarily dismissed
Leigh’s claims, discerning that some were legally insupportable and that Leigh had presented
insufficient evidence to create triable issues of material fact as to others. We affirm.
I. BACKGROUND
Leigh is a longtime member of Alpha Kappa Alpha Sorority (AKA). Leigh continued
her membership after college in AKA’s Southfield chapter of Pi Tau Omega (PTO), a service-
oriented group of professional women. In 2012, Leigh was elected to serve as PTO’s vice
president/president elect for a two-year term beginning January 1, 2013. According to PTO
bylaws, the elected vice president immediately serves a two-year term as chapter president
following her vice presidency. Leigh was to serve as vice president under Cassandra Lewis.
In the summer of 2012, while still acting as vice president, Lewis stopped attending
general and mandatory committee meetings. In October 2012, Lewis told the acting president
that she was on temporary work assignment in North Carolina. Lewis further stated that she
would know the status of her employment before the time arose to take her oath of office, and
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that she would not accept the presidency if she could not fulfill her duties. On December 13,
2012, Lewis took the oath as president, and Leigh as vice president. On January 9, 2013, Lewis
announced her appointment of various committee chairs, as was her right as PTO president.
Two days later, Lewis announced that she had accepted a permanent position in North Carolina
and resigned as PTO president.
Leigh ascended to the presidency. Her first act was to request the resignation of Lewis’s
appointed committee heads. Complaints were made to AKA leadership and Charlene Truitt
Nelson, the regional director for AKA’s Great Lakes area, intervened. Following a special
meeting with Nelson, PTO members were ordered to participate in a sisterhood-building
workshop. At that workshop, Leigh argued with Protocol Committee Chair, Antonia Watkins.
Leigh then appointed two committee “cochairs” to circumvent Watkins’s authority. In March
2013, Watkins filed a complaint with Nelson, asserting that Leigh bullied and “hazed” her, as
well as describing the negative tenor of their working relationship.
Nelson did not immediately act upon Watkins’s complaint. Other concerns were
apparently brought to Nelson’s attention, however, and on August 7, 2013, Nelson initiated an
investigation into complaints of hazing and improper chapter operations against Leigh and PTO.
Pending the investigation, Nelson withdrew the membership rights of Leigh and PTO, preventing
the sorority chapter from meeting. Nelson appointed a “Standards Investigation Team
Evaluators,” or SITE team, to investigate the complaints. Over the following 5-1/2 months, the
SITE team interviewed PTO members and reviewed chapter documents. The team ultimately
determined that improprieties had occurred during the chapter’s elections and severe
irregularities in chapter operations were pervasive. Nelson reinstated Leigh’s and PTO’s
membership rights, but ordered extensive training in proper AKA procedure and relationship
building. Nelson determined “that the chapter is profoundly divided,” and ordered new elections
to remedy the rift. Leigh ran for reelection but was defeated.
In the midst of the SITE team investigation, Leigh filed suit. She accused Lewis of
fraudulently misrepresenting her intent to remain in Michigan and fulfill her duties as PTO
president in order to install her friends in leadership positions. Leigh accused AKA and Nelson
of breaching contractual duties set forth in various AKA governing documents by failing to
conduct the SITE team investigation in a timely and proper manner. Leigh contended that
AKA’s and Nelson’s conduct of the investigation was also negligent. Leigh alleged that Nelson
and Lewis conspired to remove Leigh from her position as president. Leigh further charged
Watkins with defaming her at an AKA-sponsored breakfast, by publicly broadcasted that Leigh
had hazed her.1
Ultimately, the circuit court summarily dismissed Leigh’s complaint in its entirety. This
appeal followed.
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Leigh also raised claims for declaratory judgment and injunctive relief, and accused Nelson and
AKA of violating her due process rights. Leigh has since abandoned those claims and we do not
consider them on appeal.
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II. STANDARD OF REVIEW
We review de novo a circuit court’s resolution of a summary disposition motion. Zaher v
Miotke, 300 Mich. App. 132, 139; 832 NW2d 266 (2013).
A motion under MCR 2.116(C)(8) “tests the legal sufficiency of the complaint on
the basis of the pleadings alone to determine if the opposing party has stated a
claim for which relief can be granted.” We must accept all well-pleaded
allegations as true and construe them in the light most favorable to the nonmoving
party. The motion should be granted only if no factual development could
possibly justify recovery.
A motion under MCR 2.116(C)(10) “tests the factual support of a
plaintiff’s claim.” “Summary disposition is appropriate under MCR 2.116(C)(10)
if there is no genuine issue regarding any material fact and the moving party is
entitled to judgment as a matter of law.” “In reviewing a motion under MCR
2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other
relevant documentary evidence of record in the light most favorable to the
nonmoving party to determine whether any genuine issue of material fact exists to
warrant a trial.” “A genuine issue of material fact exists when the record, giving
the benefit of reasonable doubt to the opposing party, leaves open an issue upon
which reasonable minds might differ.” [Id. at 139-140 (citations omitted).]
III. ANALYSIS
Although Leigh was displeased by the chain of events that plagued her short run as PTO
president, we agree with the circuit court that she failed to raise actionable claims or create
triable fact issues for a jury’s consideration.
A. BREACH OF CONTRACT AND NEGLIGENCE
Leigh first alleged that AKA and Nelson violated their investigative duties as described
in AKA’s Constitution and Bylaws, Manual of Standard Procedures (MSP), and a handbook
entitled Say No to Hazing. Leigh contends that hazing was not at issue in this case because
hazing occurs only during the membership intake process, while Watkins had been an AKA
member for several years. As hazing was not involved, Leigh asserts that AKA and Nelson were
not permitted to withdraw her membership privileges pending the investigation. And if hazing
were involved, AKA and Nelson breached their contractual duties to complete the investigation
as described in the handbook.
The AKA governing documents at issue in this case form a contract between the sorority
and its members. We review de novo questions of contract interpretation. Klapp v United Ins
Group Agency, Inc, 468 Mich. 459, 468; 663 NW2d 447 (2003).
In interpreting a contract, it is a court’s obligation to determine the intent of the
parties by examining the language of the contract according to its plain and
ordinary meaning. If the contractual language is unambiguous, courts must
interpret and enforce the contract as written, because an unambiguous contract
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reflects the parties’ intent as a matter of law. [In re Smith Trust, 480 Mich. 19, 24;
745 NW2d 754 (2008) (citations omitted).]
Leigh is correct that hazing was not at issue in this case. AKA’s Constitution and Bylaws
and the Say No to Hazing handbook define “hazing” as conduct “not limited to physical acts such
as hitting, striking, laying hands upon or threatening to do bodily harm to any individual(s) while
acting in one’s capacity as a member of [AKA], behavior which is directed against any
individual(s) for the purpose of causing shame, abuse, insult, humiliation, intimidation or
disgrace.” Examples include “underground hazing,” “financial hazing,” “pre-pledging,” “post-
pledging,” or “post-initiation pledging” hazing. The documents strictly prohibit hazing “in any
form.” The handbook also defines the “scope” of the sorority’s anti-hazing policy:
Prospective members of [AKA], both graduate and undergraduate, have
the right to be treated fairly, with dignity and respect, before, during, and after the
official Membership Intake Process. This policy shall apply to all members of
[AKA] who engage in hazing activities. Any prospective member of [AKA]
subjected to any form of hazing or anyone having knowledge of hazing activities
within [AKA] must file a written complaint with the Regional Director pursuant
to the Procedure to Implement Anti-Hazing Policy.
The theme running through these provisions is that AKA sorority forbids mistreatment of
prospective and newly selected members. The Constitution and Bylaws and handbook use
examples of “pre-pledging,” “post-pledging,” “post-initiation pledging,” and “undergraduate
hazing.” The handbook asserts the right of prospective members to be treated fairly and with
dignity before, during, and after the membership intake process. These provisions read together
provide guidelines for the proper treatment of new members, from the potential pledges’ first
contact with sorority members through the initiation process and into their days as “newbies” in
the sorority. That the documents decry hazing “directed against any individual(s)” does not alter
the fundamental nature of the conduct forbidden. Watkins had been a member of a post-graduate
professional chapter of AKA for several years. Accordingly, despite Watkins’s characterization
of her complaint, hazing was not at issue.
The absence of hazing did not preclude AKA and Nelson from withdrawing Leigh’s
membership rights pending the investigation. The MSP provides that the regional director may
initiate an action and withdraw the privileges of a member “who violates the Constitution and
Bylaws.” Moreover, the Constitution and Bylaws imposes upon the regional director “the duty
. . . to exercise general supervision over the chapters of her region” and grants her “the power to
address problems in her region.” Withdrawing the membership rights of an individual and a
chapter pending an investigation into complicated and severe chapter mismanagement falls
within the ambit of “address[ing] problems in her region.” Accordingly, Leigh’s challenge in
this regard is without merit.
Leigh further asserts that AKA and Nelson conducted the investigation in a negligent
manner. Leigh cites the Alpha Kappa Alpha Sorority, Incorporated Investigation Guide, upon
which Nelson and the SITE team were bound to base their task. Leigh contends that the Guide is
not part of the parties’ contract because it is available only to AKA management. The duties
created by the guide are therefore separate from the contract, Leigh avers, forming a distinct duty
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whose breach may form the basis of a tort claim. This interpretation is insupportable. The
Constitution and Bylaws created AKA’s and Nelson’s duty to investigate member and chapter
violations. The guide merely provides a fuller picture of that duty. Nelson’s and AKA’s
promise to conduct a fair investigation arose from the contract and cannot support a separate tort
action. See Rinaldo’s Constr Corp v Mich Bell Tel Co, 454 Mich. 65, 83-84; 559 NW2d 647
(1997); Hart v Ludwig, 347 Mich. 559, 563-565; 79 NW2d 895 (1956).
Leigh failed to create a triable issue of material fact relating to AKA’s and Nelson’s
conduct of the investigation as proscribed by the guide. Leigh contends that Nelson failed to
adequately detail the allegations raised against her in the SITE team appointment letter as
required by Guide ¶ 4.1. Nelson complied with her duty by attaching the hazing complaint form
and accompanying email submitted by Watkins. Leigh contends that Nelson breached her duty
to appoint team members who could quickly conduct the investigation “unhampered by other
commitments.” Yet, Leigh presented no evidence that the length of the investigation was caused
by the team members’ schedules.
The only possible contractual breach presented by Leigh pertains to the length of the
investigation as governed by Guide ¶ 2.3, which provides that most investigations should be
completed within 45 days and that “SITE members should request and justify extensions in
writing.” There is no evidence that the team requested or justified its extension request in
writing. However, Leigh failed to support her claim that she was injured by this delay. Leigh’s
membership rights were reinstated and although she lost her presidency, this was the result of an
election and not investigatory delay. Leigh’s loss of the financial reimbursements owing to a
chapter president was similarly caused by the election. While Leigh contended that the
investigation delay affected her relationships with other sorority members, because the delay lent
credence to the allegations and rumors, she could cite no examples of individuals with whom her
relationship was lost or strained. Leigh further failed to support her claim of stress-induced
health effects with any evidence of new or worsening conditions.
Ultimately, absent any duty separate from that created by contract, the circuit court
correctly dismissed Leigh’s negligence claim. And without proof of any contractual breach that
caused Leigh damage, the court properly dismissed her breach of contract claim as well.
B. FRAUDULENT MISREPRESENTATION
Leigh accused Lewis of fraudulently misrepresenting that she would not be moving to
North Carolina and that she would not take the oath of office knowing she could not fulfill her
duties as PTO president. As a result of these falsehoods, Leigh contended that she lost the ability
to appoint her own committee heads. The chain of complaints and ultimate investigation
occurred, Leigh asserts, because she was saddled to Lewis’s uncooperative leadership team. The
circuit court dismissed Leigh’s complaint because Lewis’s comments related to future
performance, which create a contract rather than tort action, and Leigh failed to establish current
bad faith necessary to support a tort action.
Our Supreme Court outlined the elements of fraudulent misrepresentation, also known as
actionable fraud, as follows:
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The general rule is that to constitute actionable fraud it must appear: (1) That
defendant made a material representation; (2) that it was false; (3) that when he
made it he knew that it was false, or made it recklessly, without any knowledge of
its truth and as a positive assertion; (4) that he made it with the intention that it
should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and
(6) that he thereby suffered injury. Each of these facts must be proved with a
reasonable degree of certainty, and all of them must be found to exist; the absence
of any one of them is fatal to a recovery. [Titan Ins Co v Hyten, 491 Mich. 547,
555; 817 NW2d 562 (2012) (quotation marks and citations omitted).]
“[A]n action for fraudulent misrepresentation must be predicated upon a statement relating to a
past or an existing fact. Future promises are contractual and do not constitute fraud.” Hi-Way
Motor Co v Int’l Harvester Co, 398 Mich. 330, 336; 247 NW2d 813 (1976). See also Lawrence
M Clarke, Inc v Richco Constr, Inc, 489 Mich. 265, 284; 803 NW2d 151 (2011). A plaintiff can
avoid this bar, however, by establishing that the declarant had the present intent not to fulfill her
promises at the time the statements were made. Derderian v Genesys Health Care Sys, 263 Mich
App 364, 378-379; 689 NW2d 145 (2004).
Even if Leigh presented evidence that Lewis harbored ill intent when she made her
statements in October 2012, Leigh could not support her claim. Leigh cannot connect the dots
between the initial action—Lewis’s October 2012 promise not to take the oath of office if she
could not fulfill her role as president—and Leigh’s ultimate injury—loss of her position as PTO
president. Nelson withdrew Leigh’s membership privileges because Watkins complained of
hazing and because various other complaints of chapter mismanagement had been lodged. An
investigation revealed chapter improprieties so severe that restructuring and new elections were
required. Leigh ran for president but the chapter members chose not to elect her. There is no
evidence that Leigh was the subject of an investigation because of events Lewis set into place.
Rather, the evidence is that several complaints of various chapter misdeeds led to the
investigation. And Leigh lost her position not because Lewis may have lied, but because the
PTO membership no longer wanted her for president. Absent evidence supporting the chain of
causation, the circuit court properly dismissed Leigh’s fraudulent misrepresentation claim.
C. DEFAMATION
Leigh accused Watkins of defaming her by telling other attendees at an AKA breakfast in
June 2013 that Leigh had hazed her.
A communication is defamatory if it tends so to harm the reputation of another as
to lower him in the estimation of the community or to deter third persons from
associating or dealing with him. Generally, to sustain a claim of defamation, the
following elements must be established:
(1) a false and defamatory statement concerning the plaintiff, (2) an
unprivileged communication to a third party, (3) fault amounting at least to
negligence on the part of the publisher, and (4) either actionability of the
statement irrespective of special harm (defamation per se) or the existence
of special harm caused by publication. [Smith v Anonymous Joint
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Enterprise, 487 Mich. 102, 113, quoting Mitan v Campbell, 474 Mich. 21,
24; 706 NW2d 420 (2005) (other quotation marks and citations omitted).]
“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 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; 613 NW2d 378 (2000).
Hazing is a crime in Michigan, not just an action forbidden by AKA documents. See
MCL 750.411t. Accordingly, Leigh contended that Watkins’s statements were defamatory per
se and that she was not required to establish damages. Leigh’s alleged conduct does not fall
within the statutory definition of hazing and therefore no charges could have arisen even if her
conduct were proven. The parties disagree whether a defamation per se claim may stand where
the plaintiff’s conduct does not fall within the statutory ambit. We need not resolve that legal
issue in this case, however, because Leigh failed to factually support her defamation claim.
In the complaint, Leigh generically alleged that “at the 2013 June Breakfast of Alpha Rho
Omega Chapter of” AKA, Watkins “stated that Plaintiff hazed her.” During her deposition in
April and May 2014, Leigh was unable to describe what Watkins said or to whom. By the time
she filed her supplemental witness list in August 2014, Leigh was still only able to identify
“Individuals seated at the table with Defendant Antonia at Alpha Rho Omega’s June breakfast
2013 address unknown.” Leigh had ample opportunity to locate these people and knew that
defendants were searching for the information. Yet, Leigh never asked her fellow PTO members
if they were witnesses to Watkins’s comments despite admitting that this affair has been a major
topic of conversation among the women since the chapter reconvened. As Leigh completely
failed to support her claim, the court properly dismissed it.
D. CONSPIRACY
Leigh accused Lewis and Nelson of conspiring to ruin and then end her presidency. “A
civil conspiracy is a combination of two or more persons, by some concerted action, to
accomplish a criminal or unlawful purpose, or to accomplish a lawful purpose by criminal or
unlawful means.” Admiral Ins Co v Brochert, 194 Mich. App. 300, 313; 486 NW2d 351 (1992).
“[T]he plaintiff must establish some underlying tortious conduct.” Urbain v Beierling, 301 Mich
App 114, 132; 835 NW2d 455 (2013). As aptly noted by the circuit court, absent a viable claim
of negligence or fraudulent misrepresentation, Leigh’s conspiracy claim had to be dismissed.
We affirm.
/s/ Elizabeth L. Gleicher
/s/ David H. Sawyer
/s/ William B. Murphy
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