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### STATE OF MICHIGAN

COURT OF APPEALS

TWILA C. LEIGH,

Plaintiff-Appellant, UNPUBLISHED October 6, 2015

v No. 323677
Oakland Circuit Court ALPHA KAPPA ALPHA SORORITY, INC., CHARLENE TRUITT NELSON, CASSANDRA LEWIS, and ANTONIA WATKINS, LC No. 2013-137113-NZ

Defendants-Appellees.

Before: G LEICHER , P.J., and S AWYER and M URPHY , JJ.

P ER C URIAM

.

Plaintiff Twila Leigh felt aggrie ved when her sorority withdre w her membership rights and interrupted her term as local chapter president during an i nvestigation 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 members hip did not reelect her. She filed suit against the sorority, the sorority’s regional director, he r sorority chapter’s prior president, and a chapter member who had lodged a complaint against her, ch arging a series of contractual breaches, negligent actions, fraudulent misrepresentation, cons piracy, 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 serviceoriented group of professional women. In 2012, Leigh was elect ed to serve as PTO’s vice president/president elect for atwo-year term beginning January 1, 2013. According to PTO bylaws, the elected vice presiden t immediately serves a two-yea r term as chapter president following her vice presidency. Lei gh was to serve as vice pres ident under Cassandra Lewis.

In the summer of 2012, while still acting as vice president, L ewis stopped attending general and mandatory committee meetings. In October 2012, Lew is told the acting president that she was on temporary work a ssignment in North Carolina. L ewis further stated that she would know the status of her employment before the time arose t o take her oath of office, and-2- that she would not accept the presidency if she could not fulfi ll her duties. On December 13, 2012, Lewis took the oath as president, and Leigh as vice presi dent. On January 9, 2013, Lewis announced her appointment of various committee chairs, as was h er right as PTO president. Two days later, Lewis announced that she had accepted a permane nt position in North Carolina and resigned as PTO president.

Leigh ascended to the presidency. Her first act was to reques t the resignation of Lewis’s appointed committee heads. Compl aints were made to AKA leaders hip 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 Committ ee 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 Lei gh bullied and “hazed” her, as well as describing the negative te nor of their working relation ship.

Nelson did not immediately act upon Watkins’s complaint. Othe r concerns were apparently brought to Nelson’s attention, however, and on Augus t 7, 2013, Nelson initiated an investigation into complaints of hazing and improper chapter op erations against Leigh and PTO. Pending the investigation, Nelson w ithdrew the membership right s of Leigh and PTO, preventing the sorority chapter from meeti ng. Nelson appointed a “Standar ds 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 document s. The team ultimately determined that improprieties ha d occurred during the chapter’s elections and severe irregularities in chapter opera tions were pervasive. Nelson re instated 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 di vided,” and ordered new elections to remedy the rift. Leigh ran f or 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 a nd fulfill her duties as PTO president in order to install her friends in leadership positio ns. Leigh accused AKA and Nelson of breaching contractual duties set forth in various AKA govern ing documents by failing to conduct the SITE team investigation in a timely and proper mann er. Leigh contended that
AKA’s and Nelson’s conduct of the investigation was also neglig ent. Leigh alleged that Nelson and Lewis conspired to remove Leigh from her position as presid ent. Leigh further charged Watkins with defaming her at an AKA-sponsored breakfast, by pub licly broadcasted that Leigh
had hazed her. 1

Ultimately, the circuit court summarily dismissed Leigh’s comp laint in its entirety. This appeal followed.

1 Leigh also raised claims for d eclaratory judgmen t and injuncti ve relief, and accused Nelson and AKA of violating her due process rights. Leigh has since aband oned those claims and we do not consider them on appeal.-3- II. STANDARD OF REVIEW

We review de novo a circuit cour t’s resolution of a summary di sposition 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 p arty 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 favorab le to the nonmoving party. The motion should be gran ted only if no factual developm ent could possibly justify recovery.

A motion under MCR 2.116(C)(10) “tests the factual support of a plaintiff’s claim.” “Summary d isposition is appropriate under M CR 2.116(C)(10) if there is no genuine issue regarding any material fact and th e moving party is entitled to judgment as a matter of law.” “In reviewing a motio n under MCR 2.116(C)(10), this Court considers the pleadings, admissions, a ffidavits, and other relevant documentary evidence of record in the light most favor able to the nonmoving party to determine whether any genuine issue of mater ial 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 o pen 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 plag ued her short run as PTO president, we agree with the circuit court that she failed to r aise actionable claims or create
triable fact issues for ajury’s consideration.

A. BREACH OF CONTRACT AND NEGLIGENCE

Leigh first alleged that AKA a nd Nelson violated their investi gative 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 bec ause hazing occurs only during the membership intake process, while Watkins had been an AKA member for several years. As h azing was not involved, Leigh as serts 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 contr act between the sorority and its members. We review de novo questions of contract inter pretation. 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 deter mine 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, c ourts must interpret and enforce the contract as written, because an unamb iguous contract-4- 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. A KA’s Constitution and Bylaws
and the Say No to Hazing handbook define “hazing” as conduct “not limited to physical ac ts such as hitting, striking, laying hands upon or threatening to do bo dily harm to any individual(s) while acting in one’s capacity as a member of [AKA], behavior which i s 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,” “postpledging,” or “post-initiation pledging” hazing. The document s 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, befor e, during, and after the official Membership Intake Process. This policy shall apply to all members of [AKA] who engage in hazing activ ities. Any prospective member of [AKA] subjected to any form of hazing or anyone having knowledge of h azing activities within [AKA] must file a written complaint with the Regional Di rector pursuant to the Procedure to Implement Anti-Hazing Policy.

The theme running through these provisions is that AKA sororit y forbids mistreatment of prospective and newly selected members. The Constitution and B ylaws and handbook use examples of “pre-pledging,” “post-pledging,” “post-initiation p ledging,” 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, fro m the potential pledges’ first contact with sorority members t hrough the initiation process an d into their days as “newbies” in the sorority. That the document s decry hazing “directed agains t any individual(s)” does not alter
the fundamental nature of the c onduct forbidden. Watkins had b een a member of a post-graduate professional chapter of AKA for several years. Accordingly, de spite Watkins’s characterization of her complaint, hazi ng was not at issue.

The absence of hazing did not preclude AKA and Nelson from wit hdrawing 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 regi onal 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 ri ghts of an individual and a chapter pending an investigation into complicated and severe ch apter mismanagement falls within the ambit of “address[i ng] problems in her region.” Acc ordingly, Leigh’s challenge in this regard is without merit.

Leigh further asserts that AKA and Nelson conducted the invest igation 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 therefo re separate from the contract, Leigh avers, formi ng a distinct duty-5- whose breach may form the basis of a tort claim. This interpre tation is insupportable. The Constitution and Bylaws created AKA’s and Nelson’s duty to inve stigate member and chapter violations. The guide merely pr ovides a fuller picture of that duty. Nelson’s and AKA’s promise to conduct a fair investig ation 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 relati ng to AKA’s and Nelson’s conduct of the investigation as p roscribed by the guide. Leigh contends that Nelson failed to adequately detail the allegations raised against her in the SIT E 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 th at Nelson breached her duty to appoint team members who could quickly conduct the investiga tion “unhampered by other commitments.” Yet, Leigh presented no evidence that the lengthof the investigation was caused by the team members’ schedules.

The only possible contractual br each presented by Leigh pertai ns to the length of the investigation as governed by Guide ¶ 2.3, which provides that mo st 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 just ified its extension request in writing. However, Leigh failed to support her claim that she w as injured by this delay. Leigh’s membership rights were reinstated and although she lost her pre sidency, this was the result of an election and not investigatory delay. Leigh’s loss of the fina ncial reimbursements owing to a chapter president was similarly caused by the election. While Leigh contended that the investigation delay affected her relationships with other soror ity members, because the delay lent credence to the allegations and rumors, she could cite no examp les of individuals with whom her relationship was lost or strained. Leigh further failed to sup port her claim of stress-induced health effects with any eviden ce of new or wor sening conditions

.

Ultimately, absent any duty separate from that created by cont ract, the circuit court correctly dismissed Leigh’s neg ligence claim. And without proo f of any contractual breach that caused Leigh damage, the court pr operly dismissed her breach of contract claim as well.

B. FRAUDULENT MISREPRESENTATION

Leigh accused Lewis of fraudulently misrepresenting that she w ould 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, Leig h contended that she lost the ability to appoint her own committee heads. The chain of complaints an d ultimate investigation occurred, Leigh asserts, because she was saddled to Lewis’s unc ooperative leadership team. The circuit court dismissed Leigh’s complaint because Lewis’s comme nts related to future performance, which create a contract rather than tort action, a nd Leigh failed to establish current bad faith necessary to su pport a tort action.

Our Supreme Court outlined the elements of fraudulent misrepre sentation, also known as actionable fraud, as follows:-6- The general rule is that to cons titute 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, witho ut any knowledge of its truth and as a positive assertion; (4) that he made it withthe 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 b e proved with a reasonable degree of certainty, and all of them must be found t o 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 misrep resentation must be predicate d upon a statement relating to a past or an existing fact. Future promises are contractual and d o 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 inten t 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 in jury—loss of her position as PTO president. Nelson withdrew Leigh’s membership privileges becau se Watkins complained of hazing and because various other complaints of chapter mismanag ement had been lodged. An investigation revealed chapter improprieties so severe that res tructuring and new elections were required. Leigh ran for president but the chapter members chos e 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 chap ter misdeeds led to the investigation. And Leigh lost her position not because Lewis m ay have lied, but because the PTO membership no longer wanted her for president. Absent evid ence supporting the chain of causation, the circuit court pr operly dismissed Leigh’s fraudul ent misreprese ntation claim.

C. DEFAMATION

Leigh accused Watkins of defam ing her by telling other attende es at an AKA breakfast in June 2013 that Leigh had hazed her.

A communication is defamatory if it tends so to harm the reputa tion of another as to lower him in the estimation of the community or to deter thi rd 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 t hird party, (3) fault amountin g at least to negligence on the part of the publisher, and (4) either actiona bility of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by publication. [ Smith v Anonymous Joint-7- Enterprise , 487 Mich 102, 113, quoting Mitan v Campbell , 474 Mich 21, 24; 706 NW2d 420 (2005) (other quotat ion marks and citations om itted).]

“At common law, words charging the commission of a crime are de famatory per se, and hence, injury to the reputation of the person defamed is presumed to t he 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 c ontended that Watkins’s stat ements were defamatory per se and that she was not require d to establish damages. Leigh’s alleged conduct does not fall within the statutory definition of hazing and therefore no char ges 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 ambi t. We need not resolve that legal issue in this case, however, because Leigh failed to factually support her defamation claim.

In the complaint, Leigh generi cally 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 s aid or to whom. By the time she filed her supplemental witn ess list in August 2014, Leigh w as still only able to identify
“Individuals seated at the table with Defendant Antonia at Alph a Rho Omega’s June breakfast 2013 address unknown.” Leigh had am ple opportunity to locate t hese people and knew that defendants were searching for th e information. Yet, Leigh neve r 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 reconve ned. 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 so me concerted action, to accomplish a criminal or unlawful purpose, or to accomplish a l awful 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 conduc t.” Urbain v Beierling , 301 Mich App 114, 132; 835 NW2d 455 (2013). As aptly noted by the circu it court, absent a viable claim of negligence or fraudulent misrepresentation, Leigh’s conspira cy claim had to be dismissed.

We affirm.

/s/ Elizabeth L. Gleicher /s/ David H. Sawyer /s/ William B. Murphy