If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

JOHN STANTON and ROBIN STANTON,

Plaintiffs-Appellants,

UNPUBLISHED

February 21, 2023

v No. 358408

St. Clair Circuit Court

ANCHOR BAY SCHOOL DISTRICT, LEONARD 

WOODSIDE, and SHERRY KENWARD,

LC No. 18-000314-CK

Defendants-Appellees.

Before: CAVANAGH, P.J., and SERVITTO and GARRETT, JJ.

PER CURIAM.

This intentional tort case is before this Court for the second time. In the first appeal,

defendant Sherry Kenward challenged the trial court’s denial of her motion for summary 

disposition on the basis of governmental immunity.1 This Court affirmed, agreeing that there were 

questions of fact regarding Kenward’s entitlement to immunity. Stanton v Anchor Bay Sch Dist, 

unpublished per curiam opinion of the Court of Appeals, issued January 7, 2020 (Docket No. 

345110). After discovery, the trial court granted Kenward’s second motion for summary 

disposition. Plaintiffs, John Stanton (Stanton) and Robin Stanton (Robin), appeal as of right. 

Finding no error requiring reversal, we affirm.

I. FACTUAL BACKGROUND

This action arises from plaintiffs’ resignations from their respective positions with 

defendant Anchor Bay School District (ABSD). Stanton was principal at the Anchor Bay High 

School, and Robin was principal at Anchor Bay Middle School. Approximately two years before 

the events at issue in this case, Stanton and Patricia Mikolowski, a security guard at the high school, 

confiscated a wooden penis from a student. According to Stanton, he and Mikolowski regularly 

joked about the incident thereafter. After Mikolowski accepted a position at the middle school in 

 

1 The trial court granted summary disposition as to defendants Anchor Bay School District and 

Leonard Woodside, and that decision was not challenged.
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May 2017, Stanton, Mikolowski, and several other employees gathered to celebrate Mikolowski’s 

last day. During the gathering, Stanton presented the wooden penis to Mikolowski as a gift. 

Stanton also signed it and added the inscription, “Hope your job isn’t too hard!”

Sometime after the farewell party, Kenward, the director of student services, received an 

anonymous complaint describing Stanton’s gift and indicating that the writers found “it offensive 

and disgusting that the High School Principal would do something like this.” Kenward reported 

the complaint to the superintendent, defendant Leonard Woodside, who told Kenward to interview 

Mikolowski. In pertinent part, Kenward’s notes from her meeting with Mikolowski reflect the 

following:

Pat said to me that everybody was laughing at her. Pat shared with me that 

she cried the entire weekend. She kept telling me how embarrassed she was with 

the wooden penis and how uncomfortable she felt. Pat kept crying over and over 

and I couldn’t get her to stop crying when I spoke with her.

Pat also shared with me that she couldn’t believe how rude Mr. Stanton was 

to her the last day of work. Pat said that Mr. Stanton barked orders all day long at 

her. Pat said “this is why I am leaving the high school because I get no respect.”

Pat’s major concern is she is very afraid to take the new custodial promotion 

at Middle School North because she is afraid that [Robin] will target her and bully 

her like she does to her other staff. Pat said that [Robin] acts like a princess, but is 

a bitch.

Pat also mentioned that she knows how [Robin] operates because she 

retaliates against the staff that complain about her.

Pat shared with me that when she saw the wooden penis it was like a “F[***] 

You” on the way out.

Kenward’s summary of the incident was reflected in Stanton’s annual performance

evaluation. Woodside advised Stanton that he intended to file charges regarding the sexual 

harassment complaint with the Board of Education unless Stanton resigned within 24 hours. 

Additionally, if Stanton did not resign, his performance evaluation describing the sexual 

harassment investigation would become a matter of public record. Stanton tendered his official 

resignation in June 2017.

Stanton began interviewing for the principal position at Churchill High School in Livonia 

in June 2017. Stanton’s ABSD supervisor provided a favorable review, and Stanton was hired. 

But a few days later, Livonia School District (LSD) received an anonymous tip indicating that 

Stanton was the subject of a sexual harassment complaint during his tenure at Anchor Bay High 

School. Stanton resigned at LSD’s request.

Robin also received a negative performance evaluation for that school year. She went on 

medical leave from her position with ABSD around the same time Stanton was dealing with the 

repercussions of his gift, eventually resigning in 2018.
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In the wake of Stanton’s resignation from ABSD, Mikolowski contacted him to explain 

that she did not file a complaint, but Kenward called Mikolowski into the office and interrogated 

her about the wooden penis. Stanton recalled that Mikolowski said she was very upset during the 

interrogation, but she was not offended by the gift, and she denied saying the things that appeared 

in his performance evaluation.

Plaintiffs sued ABSD, Woodside, and Kenward, but only their claims against Kenward are 

at issue in this appeal. With respect to Kenward, plaintiffs sought damages for defamation, 

intentional infliction of emotional distress, tortious interference with plaintiffs’ ABSD 

employment contracts, and tortious interference with Stanton’s LSD employment contract. As 

noted earlier, the trial court granted summary disposition of all plaintiffs’ claims. The court 

reasoned that there was no evidence that Kenward did anything to interfere with Stanton’s LSD 

contract, and Kenward could not interfere with plaintiffs’ ABSD contracts when she was carrying 

out her duties as an ABSD employee. Concerning plaintiffs’ claim for intentional infliction of 

emotional distress, the court held that the facts did not establish extreme and outrageous conduct. 

Turning to plaintiffs’ defamation claim, the court reasoned that regardless of whether it focused 

on the elements of defamation, common-law privilege, or governmental immunity, the absence of 

evidence that Kenward acted with malice or did not act in good faith was dispositive. The 

defamation claim also failed because Kenward’s communications with Woodside and others “that 

she was required to share that information with” did not constitute publication. The court further 

concluded that all the claims were “permeated with the qualified immunity that [Kenward] enjoys 

because I have seen nothing that would indicate that she was acting with the reckless degree of 

bad faith to where she would lose that . . . .”

II. STANDARDS OF REVIEW

A trial court’s summary disposition ruling is reviewed de novo on appeal. El-Khalil v 

Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). Summary disposition on 

the basis of governmental immunity is governed by MCR 2.116(C)(7). Petipren v Jaskowski, 494 

Mich 190, 201; 833 NW2d 247 (2013). A party moving for summary disposition under subrule 

(C)(7) may, but is not required to, support the motion with “affidavits, depositions, admissions, or 

other documentary evidence provided that the ‘substance or content’ of the supporting proofs is 

admissible as evidence.” Id. This Court accepts the factual allegations of the complaint as true 

unless contradicted by other evidence. Id. “When the material facts are not in dispute, this Court 

may decide whether a plaintiff’s claim is barred by immunity as a matter of law.” Id.

MCR 2.116(C)(10)2tests the factual sufficiency of a claim. El-Khalil, 504 Mich at 160. 

The standard of review for dispositive motions brought under MCR 2.116(C)(10) is well settled:

 

2 Kenward moved for summary disposition under MCR 2.116(C)(7), (8), and (10). But only 

Kenward’s governmental immunity argument implicated a defense outlined in subrule (C)(7), and 

the parties relied on evidence outside the pleadings. Consequently, review of plaintiffs’ claims of 

error regarding issues other than governmental immunity is appropriate under MCR 2.116(C)(10). 

See Auto-Owners Ins Co v Campbell-Durocher Group Painting & Gen Contracting, LLC, 322 

Mich App 218, 224; 911 NW2d 493 (2017).
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In evaluating a motion for summary disposition brought under this subsection, a 

trial court considers affidavits, pleadings, depositions, admissions, and other 

evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to 

the party opposing the motion. Where the proffered evidence fails to establish a 

genuine issue regarding any material fact, the moving party is entitled to judgment 

as a matter of law. [Trueblood Estate v P&G Apartments, LLC, 327 Mich App 275, 

284; 933 NW2d 732 (2019) (quotation marks and citation omitted).]

“A genuine issue of material fact exists when the record leaves open an issue upon which 

reasonable minds might differ.” El-Khalil, 504 Mich at 160 (quotation marks and citation 

omitted).

III. GOVERNMENTAL IMMUNITY

Plaintiffs argue on appeal that the trial court erred by granting summary disposition on the 

basis of governmental immunity because Kenward knowingly lied and, therefore, was not acting 

in good faith. We disagree.

The governmental tort liability act, MCL 691.1401 et seq., affords absolute immunity for 

high-ranking government officials. Odom v Wayne Co, 482 Mich 459, 469; 760 NW2d 217 

(2008). Other governmental employees, on the other hand, may be held liable for intentional torts 

in accord with the common law, which provides only qualified immunity with respect to 

intentional torts. Id. at 470, 473. Qualified immunity will shield a government employee from 

liability only if

(a) [t]he acts were undertaken during the course of employment and the 

employee was acting, or reasonably believed that he was acting, within the scope 

of his authority,

(b) the acts were undertaken in good faith, or were not undertaken with 

malice, and

(c) the acts were discretionary, as opposed to ministerial. [Id. at 480.]

The defendant bears the burden of proving his or her entitlement to qualified immunity. Id. at 479.

Plaintiffs argue that Kenward is not entitled to governmental immunity because she acted 

with malice when she knowingly lied, telling ABSD administrators that Mikolowski complained 

of sexual harassment and mistreatment by Stanton. Thus, only the second element for qualified 

immunity is at issue. In support of their claim of error, plaintiffs rely on the definition of “actual 

malice” established in New York Times Co v Sullivan, 376 US 254, 279-280; 84 S Ct 710; 11 L Ed 

2d 686 (1964), wherein the United States Supreme Court held that a public official may only 

recover damages for defamation relating to official conduct upon proof that the defamatory 

statement “was made with ‘actual malice’—that is, with knowledge that it was false or with 

reckless disregard of whether it was false or not.” Plaintiffs contend that because Kenward 

knowingly lied, her actions fall squarely within this definition of malice, which precludes 

governmental immunity. Assuming, without deciding, that this definition of malice applies to a 
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claim of qualified governmental immunity, the trial court did not err by concluding that Kenward 

was entitled to governmental immunity.3

Kenward provided a sworn statement declaring that she “endeavored to be 100% accurate”

when she summarized her interview with Mikolowski and that if any inaccuracies existed, they 

were “minor and unintentional.” Mikolowski reviewed Kenward’s summary in January 2018 and 

verified its accuracy, with the exception of five sentences that she could not, “to the best of [her] 

recollection,” remember saying. Specifically, Mikolowski could not recall saying (1) that she cried 

the entire weekend; (2) “how embarrassed she was with the wooden penis and how uncomfortable 

she felt”; (3) that Robin acted “like[] a princess, but is a [*****],”; (4) that when staff complained 

about Robin, Robin would retaliate against them; and (5) that she saw Stanton’s gift as a “ ‘F[***]

You’ on the way out.” In her most recent affidavit, Mikolowski clarified that while she could not 

specifically confirm saying the foregoing things, neither could she dispute saying them. She 

simply did not know.

Kenward reasons that Mikolowski’s uncertainty leaves plaintiffs unable to negate the goodfaith requirement for qualified immunity. Plaintiffs, on the other hand, maintain that Mikolowski’s 

first affidavit executed in 2018 establishes a question of fact as to whether Kenward knowingly 

 

3 Malice is a legal term of art that has acquired several distinct meanings depending on the context 

in which it is used, Feyz v Mercy Mem Hosp, 475 Mich 663, 683; 719 NW2d 1 (2006), and 

plaintiffs have not cited any authority applying the New York Times definition of actual malice for 

purposes of governmental immunity. While that definition has apt application in this case, it would 

not universally apply to all qualified governmental immunity claims.

In Odom, the Supreme Court indicated that “there is no immunity when the governmental 

employee acts maliciously or with a wanton or reckless disregard of the rights of another.” Odom, 

482 Mich at 474. It also cited precedent regarding willful misconduct, noting:

“[W]illful and wanton misconduct is made out only if the conduct alleged shows 

an intent to harm or, if not that, such indifference to whether harm will result as to 

be the equivalent of a willingness that it does.” Similarly, our standard civil jury 

instructions define “willful misconduct” as “conduct or a failure to act that was 

intended to harm the plaintiff” and “wanton misconduct” as “conduct or a failure 

to act that shows such indifference to whether harm will result as to be equal to a 

willingness that harm will result.” These instructions are consistent with the 

negation of the common-law definition of “good faith” and can be a useful guide 

for a trial court considering a defendant’s motion for summary disposition based on 

individual governmental immunity. Thus, the proponent of individual immunity 

must establish that he acted without malice. [Id. at 475 (citations omitted).]

Whether the definition advanced by plaintiffs should be applied to the second element of qualified 

governmental immunity is immaterial in this instance because, assuming plaintiffs can present 

evidence suggesting that Kenward made statements that were knowingly false or with reckless 

disregard of their truth or falsity, that same evidence would be consistent with the negation of good 

faith discussed in Odom.
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lied about the meeting. In pertinent part, the 2018 affidavit confirmed that Stanton presented 

Mikolowski with the wooden penis and Mikolowski accepted it, finding it funny that Stanton still 

had the item years after it had been confiscated. Mikolowski denied complaining about the gift 

and explained that she “was not offended and even went home and showed my family,” who “all 

thought it was funny.” Concerning her interactions with plaintiffs in general, Mikolowski 

indicated that Stanton was the best principal she ever worked for, and she was never mistreated by 

or complained about Robin.

Reconciling Mikolowski’s various statements, the trial court opined that Mikolowski’s 

statements were not inconsistent. Instead, the court inferred that Mikolowski was likely upset by 

“the whole thing,” but did not want to be perceived as “the bad guy,” nor did she want Stanton to 

be punished for his gift. Although Mikolowski’s 2018 affidavit is certainly favorable to plaintiffs’

position, we conclude that it does not establish that the unverified statements were falsely reported.

For purposes of plaintiffs’ claims, the most significant of the unverified statements is 

undoubtedly Kenward’s assertions that Mikolowski “kept telling me how embarrassed she was 

with the wooden penis,” “how uncomfortable she felt,” and that she cried all weekend. Nothing 

about Mikolowski’s 2018 affidavit actually contradicts these assertions. While plaintiffs suggest 

that Mikolowski found the gift funny, her first affidavit actually states that she “thought it was 

funny that [Stanton] still had” the wooden penis, that she was not “offended” by it, and that her 

family thought it was funny. It is not difficult to imagine that Mikolowski may have been 

embarrassed and uncomfortable when she found herself at the center of a bawdy joke that caused 

her coworkers to laugh at her, even if she did not personally find the gift offensive. Mikolowski 

also recalled that she cried when she turned over the gift to Kenward after the initial interview, 

telling Kenward that she did not want Stanton to get in trouble and had “no issues” with the gift. 

Stanton testified that Mikolowski said she wept profusely during the meeting with Kenward, 

though he attributed her emotional state to discomfort with Kenward’s investigation. 

Mikolowski’s most recent statement explained that the emotionally difficult nature of the situation 

left her unable to remember the details of what she said to Kenward. It is plain that Mikolowski 

was upset by the entire situation, causing her to cry on more than one occasion.

The next two unverified statements related to Robin. Although Mikolowski could not 

specifically recall making most of the statements regarding Robin, the statement she did recall is 

particularly noteworthy. Mikolowski confirmed the portion of Kenward’s summary that said, 

“[Mikolowski’s] major concern is she is very afraid to take the new custodial position at Middle 

School North because she is afraid that [Robin] will target her and bully her like she does to her 

other staff.” The other statements wherein Mikolowski purportedly called Robin a rude name and 

claimed Robin retaliated against complaining staff members conveys the same sentiment, 

regardless of whether Mikolowski recalled the exact statements Kenward reported. And as was 

the case with the first two statements, Mikolowski’s 2018 affidavit did not directly contradict 

Kenward’s report. Instead, Mikolowski said only that she had not complained about or been 

mistreated by Robin.

The final unverified statement—that Mikolowski viewed Stanton’s gift as a “ ‘F[***] You’

on the way out”—was again uncontradicted by the 2018 affidavit. Mikolowski averred that 

Stanton was the best principal she had ever worked for, but her positive opinion of Stanton’s 

professional performance does not negate the possibility that she construed Stanton’s gift 
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negatively. To the contrary, that perception would be entirely consistent with other statements that 

Mikolowski confirmed as accurate, namely, that Stanton was rude to her on her last day of work 

and continuously “barked orders” at her all day long.

In sum, the evidence before the trial court did not demonstrate that any of the unverified 

statements were inaccurately reported. But more importantly, even if reasonable minds might 

differ on whether Kenward incorrectly reported some of Mikolowski’s statements, the evidence 

does not support a conclusion that Kenward knowingly or recklessly misrepresented what 

Mikolowski said during the interview. The general tenor of the unverified statements is consistent 

with the portions verified by Mikolowski and the additional assertions in her first affidavit. The 

only evidence plaintiffs cite to rebut Kenward’s assertion that any inaccuracies were minor and 

unintentional is Mikolowski’s vague assertion that Kenward admitted having “an issue” with 

Stanton. We agree with the trial court that this perfunctory reference to an unspecified personal 

issue would not cause reasonable minds to believe that Kenward knowingly fabricated the 

statements challenged by plaintiffs.

Presented with Kenward’s affidavit swearing that she tried to report the interview 

accurately, and without evidence suggesting that Kenward knowingly or recklessly reported false 

statements, the trial court did not err by concluding that plaintiffs’ intentional torts were barred by 

governmental immunity.

IV. DEFAMATION CLAIM

Plaintiffs argue that the trial court erred by granting summary disposition of their 

defamation claim because Kenward’s substantial-truth argument mischaracterized the nature of 

their claim. It appears that plaintiffs have simply renewed all of their arguments in response to 

Kenward’s dispositive motion, without consideration of the trial court’s reasons for granting 

summary disposition. Although Kenward argued below that her statements regarding Stanton’s 

unprofessional conduct could not support a defamation claim because they were substantially true, 

the trial court did not address that theory in its ruling. Instead, it concluded that summary 

disposition of the defamation claim was appropriate for three reasons: there was no evidence that 

Kenward was acting with malice, her communications with Woodside and other ABSD 

administrators did not constitute publication, and she was entitled to qualified immunity.

“[A]s an error-correcting court, this Court’s purpose is to determine if the trial court made 

an error when it rendered its decision.” Wolfenbarger v Wright, 336 Mich App 1, 27; 969 NW2d 

518 (2021). We are not precluded from reviewing an issue raised before the trial court merely 

because the trial court failed to address it, Peterman v Dep’t of Natural Resources, 446 Mich 177, 

183; 521 NW2d 499 (1994), but we will not ordinarily decide issues that are deemed moot, Garrett 

v Washington, 314 Mich App 436, 449; 886 NW2d 762 (2016). “A matter is moot if this Court’s 

ruling cannot for any reason have a practical legal effect on the existing controversy.” Id. 

(quotation marks and citation omitted). Here, even if this Court agreed with plaintiffs’ position 

regarding the substantial truth doctrine, it would not provide a basis for granting appellate relief 

unless the trial court’s actual reasons for granting summary disposition were also erroneous. And 

if all the trial court’s stated reasons were erroneous, plaintiffs would not have to challenge 

Kenward’s substantial truth theory to obtain relief unless she advanced it as an alternative ground 

for affirming. In other words, a favorable ruling regarding the substantial truth doctrine would not 
-8-

have a practical effect at this juncture. As such, we decline to address this aspect of plaintiffs’

claim of error.

Plaintiffs also contend that because Kenward was the source of the misinformation that 

was shared with third parties by Woodside and other administrators, she is responsible for those 

publications. We disagree.

Plaintiffs correctly note that our Supreme Court has previously stated that “all persons who 

cause or participate in the publication of [a] libelous or slanderous matter are responsible for such 

publication . . . .” Bowerman v Detroit Free Press, 287 Mich 443, 451; 283 NW 642 (1939). The 

trial court’s reasoning regarding this issue is unclear,4but it does not appear that the court 

considered whether the secondhand publication of Kenward’s statements by others satisfied the 

publication element. Nonetheless, any error regarding this issue does not warrant appellate relief. 

A trial court’s error or omission “is not ground for . . . vacating, modifying, or otherwise disturbing 

a judgment or order, unless refusal to take this action appears to the court inconsistent with 

substantial justice.” MCR 2.613(A). Assuming, without deciding, that plaintiffs could establish 

the publication element, Kenward was still entitled to summary disposition because she was 

immune from liability as a government employee for the reasons explained in Part III of this 

opinion. Thus, any error regarding the publication element was harmless.

V. COMMON-LAW PRIVILEGE

Next, plaintiffs argue that Kenward’s statements were not protected by a common-law 

privilege. We disagree.

Actionable defamation requires “an unprivileged communication to a third party.” Mitan 

v Campbell, 474 Mich 21, 24; 706 NW2d 420 (2005). If a communication is protected by a 

qualified privilege, the plaintiff must prove “that the statement was made with actual malice, i.e., 

with knowledge of its falsity or reckless disregard of the truth.” Prysak v RL Polk Co, 193 Mich 

App 1, 15; 483 NW2d 629 (1992). In her motion for summary disposition, Kenward argued that 

all plaintiffs’ claims were premised on defamation, plaintiffs’ did not have a valid defamation 

claim because Kenward’s statements were protected by multiple common-law privileges, and 

plaintiffs could not prove malice by clear and convincing evidence. The trial court acknowledged 

that Kenward’s motion raised a question regarding the applicability of common-law privilege, but 

did not indicate whether it agreed with Kenward’s claimed privileges. It did, however, note that 

Kenward’s communications to “the Superintendent or others that she would be required to share 

that information with” would not satisfy the publication element. We construe this comment as 

 

4 With respect to publication, the trial court said that if Kenward shared the results of her interview 

“with the superintendent or others that she would be required to share that information with it’s, 

it’s not a publication.” It appears that the trial court was likely addressing the question of privilege 

and concluding that Kenward’s disclosures did not constitute an unprivileged publication.
-9-

implicating two privileges asserted by Kenward: the privilege outlined in 3 Restatement Torts, 2d, 

§ 598A,5and the shared interest privilege.

Concerning the latter, Michigan has long recognized a qualified privilege extending “to all 

communications made bona fide upon any subject-matter in which the party communicating has 

an interest, or in reference to which he has a duty to a person having a corresponding interest or 

duty.” Timmis v Bennett, 352 Mich 355, 366; 89 NW2d 748 (1958), quoting Bacon v Mich Central 

R Co, 66 Mich 166, 170; 33 NW 181 (1887). The qualified privilege encompasses not only legal 

duties, but also moral and social obligations. Timmis, 352 Mich at 366. The evidence demonstrates 

that Kenward received a complaint regarding Stanton’s gift, which the writers found “offensive 

and disgusting.” Kenward reported the complaint to Woodside, who directed her to interview 

Mikolowski about the incident, thereby imposing upon Kenward a duty to follow up with 

Mikolowski about what occurred. After doing so, Kenward shared the results of the interview 

with Woodside and other ABSD administrators, allowing them to determine how best to respond 

to the situation. Because an employer may avoid vicarious liability for hostile work environment 

claims if it takes prompt remedial action upon learning of the alleged harassment, Chambers v 

Trettco, Inc, 463 Mich 297, 312; 614 NW2d 910 (2000), ABSD and, by extension, its 

superintendent and administrators, had a clear interest in the subject-matter of the allegedly 

defamatory communication.

It could also be said that Kenward had an interest in the subject matter, while ABSD and

its administrators had a corresponding duty. Kenward averred that as a “female school 

administrator who worked in” the same building as Stanton, she considered Stanton’s behavior 

“unprofessional, inappropriate, and sexually harassing.” While Woodside and ABSD may not 

have had a legal duty to investigate the anonymous complaint, they certainly had a moral or social 

obligation to ensure that the high school principal was not engaging in sexually inappropriate 

behavior in the workplace and respond accordingly if the complaint was determined to be true. 

Because the communications at issue related to a subject matter in which Kenward, Woodside, 

and ABSD had a shared interest, Kenward’s statements were protected by a qualified privilege. 

See Timmis, 352 Mich at 366. Kenward’s statements fell within the ambit of an established 

common-law privilege. As such, we need not decide whether Michigan also recognizes the 

privilege outlined in 3 Restatement Torts, 2d, § 598A.

Since the allegedly defamatory statements were protected by a qualified privilege, 

plaintiffs had to prove “that the statement was made with actual malice, i.e., with knowledge of its 

falsity or reckless disregard of the truth.” Prysak, 193 Mich App at 15. But the evidence before 

the trial court did not demonstrate that any of the statements Mikolowski could not recall making 

were actually false or that Kenward knowingly or recklessly misrepresented her interview with 

Mikolowski. As more fully explained in Part III, plaintiffs did not present evidence that would 

cause reasonable minds to differ regarding actual malice. Thus, to the extent the trial court granted 

 

5

“An occasion makes a publication conditionally privileged if an inferior administrative officer of 

a state or any of its subdivisions who is not entitled to an absolute privilege makes a defamatory 

communication required or permitted in the performance of his official duties.” 3 Restatement 

Torts, 2d, § 598A.
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summary disposition on the basis of privilege and the absence of actual malice, it did not err by 

doing so.

VI. TORTIOUS INTERFERENCE WITH LSD CONTRACT

Plaintiffs maintain on appeal that Stanton has a valid tortious interference claim against 

Kenward with respect to Stanton’s LSD contract because Kenward was, at minimum, the source 

of the defamatory information communicated to LSD. We disagree.

In order to establish a claim of tortious interference with a contract, the plaintiff must prove, 

among other things, that the defendant unjustifiably instigated a breach of contract. Knight 

Enterprises, Inc v RPF Oil Co, 299 Mich App 275, 281; 829 NW2d 345 (2013). Plaintiffs admitted 

they had no evidence that Kenward was the person who alerted LSD of the reason for Stanton’s 

resignation from ABSD. Even so, they contend that Kenward can still be held liable for tortious 

interference with Stanton’s LSD contract because she was the one who fabricated the information 

that was shared with LSD. In support of this theory, plaintiffs again cite the Bowerman Court’s 

statement of “the general rule that all persons who cause or participate in the publication of [a] 

libelous or slanderous matter are responsible for such publication . . . .” Bowerman, 287 Mich at 

451. Bowerman, however, is a defamation case, and plaintiffs have not cited any authority 

supporting the notion that this “general rule” applies to other tort claims, like intentional 

interference with a contract.

Our review of Michigan precedent regarding tortious interference claims suggests that 

plaintiffs’ theory of indirect liability lacks merit. Again, “it is an essential element of a claim of 

tortious interference with a contract that the defendant ‘unjustifiably instigated or induced’ the 

party to breach its contract.” Knight Enterprises, 299 Mich App at 281 (citation omitted). With 

respect to this element, this Court has found the following comment helpful:

The essential thing is the purpose to cause the result. If the actor does not 

have this purpose, his conduct does not subject him to liability under this rule even 

if it has the unintended effect of deterring the third person from dealing with the 

other. It is not necessary, however, that the purpose to cause the breach of contract 

or failure to deal be the actor’s sole or paramount purpose. It is sufficient that he 

designs this result whether because he desires it as an end in itself or because he 

regards it as a necessary, even if regrettable, means to some other end . . . . [Id., 

quoting 4 Restatement Torts, § 766, comment d, pp 54-55.]

Here, even if this Court presumed Kenward intended that Stanton would lose his job with 

ABSD, it can hardly be said that she intended the statements in her investigation notes to interfere 

with Stanton’s LSD contract—a contract that was not in existence or even contemplated at the 

time of Kenward’s investigation. Thus, in the absence of evidence that Kenward was the person 

who told LSD about Stanton’s reason for resigning from ABSD, the trial court did not err by 

granting summary disposition of this claim.
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VII. TORTIOUS INTERFERENCE WITH ABSD CONTRACTS

Plaintiffs also argue that the trial court erred by granting summary disposition of their 

tortious interference claims concerning their ABSD contracts because there was a question of fact 

regarding whether Kenward was acting solely on her own behalf. We disagree.

A claim for tortious interference with a contract cannot be maintained against a party to the 

contract. Derderian v Genesys Health Care Sys, 263 Mich App 364, 382; 689 NW2d 145 (2004). 

Thus, “corporate agents are not liable for tortious interference with the corporation’s contracts 

unless they acted solely for their own benefit with no benefit to the corporation.” Reed v Mich 

Metro Girl Scout Council, 201 Mich App 10, 13; 506 NW2d 231 (1993). Plaintiffs contend that 

the trial court erred by granting summary disposition of Count III because the only evidence that 

Kenward was asked to interview Mikolowski was her own affidavit, which constituted 

inadmissible hearsay. Coupled with the fact that Kenward had personal issues with Stanton, 

plaintiffs opine that there was a question of fact regarding whether Kenward was acting solely for 

her own benefit.

When a party moves for summary disposition, only substantively admissible evidence may 

be considered. Batista v Office of Retirement Servs, 338 Mich App 340, 356; 980 NW2d 107 

(2021), oral argument ordered on the application 969 NW2d 1 (2022). That is, the content or 

substance of the evidence must be admissible, even if it is not presented in an admissible form. 

Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 373; 775 NW2d 

618 (2009). Hearsay, i.e., “a statement, other than one made by the declarant while testifying at 

the trial or hearing, offered in evidence to prove the truth of the matter asserted,” MRE 801(c), is 

generally inadmissible, MRE 802.

In her affidavit, Kenward explained that when she reported the anonymous complaint to 

Woodside, he directed her to interview Mikolowski about the incident. As plaintiffs correctly 

point out on appeal, this statement is the only evidence that Kenward was asked to investigate the 

matter. Citing People v Jones, 228 Mich App 191, 204-205; 579 NW2d 82 (1998), mod in part 

on other grounds 458 Mich 862 (1998), Kenward argues that the foregoing statement does not 

constitute hearsay because she was reiterating a command, rather than an assertive statement. We 

agree. In its consideration of an evidentiary challenge, the Jones Court observed that hearsay must 

involve a statement, which is defined as “ ‘an oral or written assertion or . . . nonverbal conduct of 

a person if it is intended by the person as an assertion.’ ” Id. at 204, quoting MRE 801(a). The 

challenged evidence in Jones—testimony that a woman came to the witness’s home and yelled, 

“[*****], come out”—did not constitute hearsay because it did not contain an assertion and was 

incapable of being true or false. Jones, 228 Mich App at 204. The Court reasoned that the 

challenged testimony involved “a command, not an assertion, and cannot be hearsay because it 

doesn’t qualify as a ‘statement.’ ” Id. at 204-205. Here, the underlying out-of-court statement—

Woodside’s directive—was likewise not an assertion capable of being true or false. Id.

More to the point, plaintiffs’ claim of error is premised on the implication that if Kenward 

was not specifically asked to interview Mikolowski, then she was acting for her own benefit and 

without benefiting ABSD. Plaintiffs’ reasoning is clearly flawed. The precise scope of Kenward’s 

duties as director of student services is not apparent from the record, but it is undisputed that 

Kenward holds an administrative position characterized as “Cabinet level.” It is also undisputed 
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that Kenward received an anonymous written complaint about the impropriety of Stanton’s gift to 

Mikolowski, that she spoke with Mikolowski about the incident, and that she reported her 

investigative findings to Woodside. ABSD subsequently relied on Kenward’s information in 

evaluating Stanton’s performance and responding to the complaint. Thus, regardless of whether 

Kenward was assigned the task of interviewing Mikolowski or chose to do so of her own accord 

after receiving the complaint, it is apparent that ABSD benefited from Kenward’s investigation. 

Thus, as an ABSD agent who was not acting solely for her own benefit, Kenward could not be 

held liable for tortious interference with either plaintiffs’ ABSD contract.6 See Reed, 201 Mich 

App at 13. The trial court did not err by granting summary disposition of Count III on that basis.

VIII. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Lastly, plaintiffs argue that the trial court erred when it determined that Kenward’s actions 

were not extreme and outrageous. We disagree.

“To establish a prima facie claim of intentional infliction of emotional distress, the plaintiff 

must present evidence of (1) the defendant’s extreme and outrageous conduct, (2) the defendant’s 

intent or recklessness, (3) causation, and (4) the severe emotional distress of the plaintiff.” Walsh 

v Taylor, 263 Mich App 618, 634; 689 NW2d 506 (2004). Only the first element is at issue on 

appeal.

“Liability attaches only when a plaintiff can demonstrate that the defendant’s 

conduct is so outrageous in character, and so extreme in degree, as to go beyond all 

possible bounds of decency, and to be regarded as atrocious and utterly intolerable 

in a civilized community.” “Liability does not extend to mere insults, indignities, 

threats, annoyances, petty oppressions, or other trivialities.” The test is whether 

“the recitation of the facts to an average member of the community would arouse 

his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” [Swain 

v Morse, 332 Mich App 510, 534; 957 NW2d 396 (2020) (citations omitted).]

The trial court is tasked with the initial obligation of determining whether the defendant’s conduct 

could be deemed sufficiently extreme and outrageous. Hayley v Allstate Ins Co, 262 Mich App 

571, 577; 686 NW2d 273 (2004). “But where reasonable individuals may differ, it is for the jury 

to determine if the conduct was so extreme and outrageous as to permit recovery.” Id.

The plaintiff in Mino v Clio Sch Dist, 255 Mich App 60, 64; 661 NW2d 586 (2003), was 

the superintendent of the defendant school district when concerns regarding his performance arose. 

 

6 To the extent Robin’s claim is premised on allegations other than Kenward’s reporting of the 

interview with Mikolowski, namely, Robin having been stripped of job duties, that theory is 

without factual support. Robin testified that she believed Kenward was responsible for the change 

in her duties, but she did not know who made the decision. The most Robin could attest to was 

that Kenward told the middle school assistant principal to respond to questions that would typically 

be directed to Robin and that Kenward did not provide a clear answer when Robin asked why she 

could no longer access the tools she needed to create a master schedule and teacher assignments.
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In addition to the plaintiff’s questionable job performance, the assistant superintendent told other 

district employees that the plaintiff was involved in an extramarital affair, “made sexual telephone 

calls,” and “inappropriately touched local waitresses.” Id. at 64-65. The assistant superintendent 

reiterated her concerns in a formal complaint, which the plaintiff denied. Id. at 65. When the 

plaintiff applied for a position elsewhere, a school board member told the prospective employer 

about community concerns regarding the plaintiff’s professional performance, as well as what she 

considered “unsubstantiated rumors” that he engaged in “sexual improprieties.” Id. at 66. 

Additionally, the public relations director purportedly circulated a memorandum that attacked the 

plaintiff’s leadership style and accused him of mistreating her. Id. at 74-75. The plaintiff advanced 

an intentional infliction of emotional distress claim against the assistant superintendent, school 

board member, and public relations director, reasoning that “by spreading scandalous falsehoods 

and rumors” about the plaintiff, they engaged in outrageous conduct. Id. at 79. This Court 

affirmed the trial court’s grant of summary disposition, opining that the challenged conduct 

“cannot be described as extreme or outrageous.” Id. at 80.

Mino is sufficiently factually analogous to the instant case to support the same conclusion. 

Just as the defendants in Mino were accused of spreading “scandalous falsehoods and rumors”

about the plaintiff’s sexual behavior and alleged mistreatment of a coworker, plaintiffs’ claim is 

premised on Kenward falsely reporting that Mikolowski accused him of sexual harassment and 

mistreatment. Consistent with Mino, we conclude that such a scandalous falsehood does not rise 

to the level of extreme and outrageous behavior, especially in light of the evidence that Stanton’s 

inappropriate gift did, in fact, trigger a complaint from someone, even if Mikolowski did not 

personally complain of sexual harassment.

Affirmed.

/s/ Mark J. Cavanagh

/s/ Deborah A. Servitto

/s/ Kristina Robinson Garrett