Michigan Supreme Court

Lansing, Michigan

Robert P. Young, Jr., Chief Justice

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein, Justices

Order 

April 10, 2015

150014

SCOTT BOUIS,

Plaintiff-Appellant,

v SC: 150014

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 
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

2

Clerk

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.