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### STATE OF MICHIGAN

COURT OF APPEALS

DORIS HOPE-JACKSON, ED. D.,

Claimant-Appellee/CrossAppellant, FOR PUBLICATION August 18, 2015 9:15 a.m.

v No. 319810 Washtenaw Circuit Court SHERI WASHINGTON, LC No. 12-001139-CZ

Respondent-Appellant/CrossAppellee, and

WILLOW RUN COMMUNITY SCHOOLS,

Respondent.

Before: W ILDER , P.J., AND S ERVITTO AND S TEPHENS , JJ.

W ILDER , P.J.

Respondent, Sheri Washington, appeals as of right the circuit court’s order granting claimant, Doris Hope-Jackson’s motion to confirm an arbitration award (post-remand order) regarding claimant’s defamation claim and denying respondent’s motion to vacate that award. Respondent also challenges an earlier order by the circuit cour t vacating a portion of one of the arbitrator’s previous orders (p re-remand order) that both dismi ssed claimant’s defamation claim because the limitations period had expired and remanded for fur ther proceedings. We affirm, in part, but vacate the portion of the arbitrator’s post-remand or der awarding $140,000 in exemplary damages to claimant.

I

The instant matter arises out of a multi-count complaint by cl aimant, the former Superintendent of Willow Run Community Schools (Willow Run), ag ainst Willow Run and respondent, who was a school board member during claimant’s ten ure. Claimant made numerous allegations in lower c ourt docket number 10-680-DC, in cluding breach of contract, sexual harassment, and violations of the Whistleblowers’ Protec tion Act, MCL 15.361 et seq ., due process, the Bullard–Plaweck i Employee Right to Know Act, M CL 423.501 et seq ., the Persons With Disabilities Civil Rights Act, MCL 37.1101 et seq ., and the Elliot-Larsen Civil-2- Rights Act, MCL 37.2101 et seq ., which were submitted to arbitration and ultimately dismissed

. Relevant to this appeal is claimant’s defamation claim against respondent arising from posts made to a website, willowrunwatchdogs.com.

Initially, in the pre-remand order, the arbitrator dismissed t he defamation claims, ruling they were time-barred. The arbitrator found that the challenge d posts on the website were made from June 18, 2008 to June 15, 2009. Moreover, the arbitrator found that, because the complaint was filed on June 22, 2010, these allegedly defamatory statemen ts made before the one-year period of limitations (J une 22, 2009 to June 22, 2010) were tim e-barred.

After dismissing the defamation claim, however, the arbitrator ordered supplemental briefing on the question whether the statute of limitations was tolled under MCL 600.5855 if respondent was the administrator of the website and she conceal ed her involvement with it. The record demonstrated that, at Willow Run’s 2010 pre-termination hearing for claimant, a witness (Jennifer Thornsberry) testified that she believed respondent w as the administrator, but respondent nevertheless testified that she was not. Ultimately , the arbitrator took judicial notice that respondent was the website’s administrator and found that respondent had actively concealed her administrative role. Regardless of respondent’s concealment of her identity, however, the arbitrator again concluded that the statute of lim itations was not tolled, reasoning that the period of limitations continued to run because claiman t was aware she had a possible cause of action for defamation at the time the posts were made.

The arbitrator also held respondent in contempt of court for r epeatedly making false statements about her role as the website’s administrator. Resp ondent paid $12,500 in sanctions to claimant and the parties agreed that the payment satisfied t he portion of the arbitration order for sanctions.

Claimant filed a complaint in the circuit court (lower court d ocket number 12-1139-CZ) to vacate the arbitrator’s pre -remand order dismissing her clai ms. The circuit court ruled that dismissing the defamation claim regarding the posts on the webs ite was a clear error of law given the arbitrator’s findings about r espondent’s concealment of her role as administrator. The circuit court remanded the matter to the arbitrator for consideration o f that claim alone.

On remand, the arbitrator issued an interim remand opinion and order, finding that the administrator made at least two per se defamatory statements an d that they were made with actual malice. The arbitrator f urther found that some of the s tatements made by a blogger identified as WRCAT were also defamatory and that a question of fact existed regarding whether WRCAT was also respondent. On this question of fact concerning the identity of WRCAT, the arbitrator permitted the parties to offer additional evidence. Next, the arbitrator requested briefing and oral argument regarding whether statements against professional reputation can be defamation per se or whether defamation per se is limited to cr iminal conduct and lack of chastity. Finally, the arbitrator ordered oral argument on dam ages, particularly whether exemplary or punitive damages were permitted and whether a requ est for a retraction was made by claimant.

In a post-remand order, the arbitrator found claimant’s testim ony to be “generally credible” and respondent’s testi mony to be “self-serving, evasi ve when convenient, and clear and-3- decisive when it served her purposes.” The arbitrator also fou nd that posts on the website that were identified as having been made by the administrator, “admi n,” and “WRCAT” were actually made by respondent. The arbitrator found, consistent with the pre-remand order that claimant’s termination was not a violation of her contract, tha t the defamation did not contribute to the termination. The arbitrator ruled that while defamation per se does not generally extend to business interests, some of respondent’s statements constituted allegations of a crime and therefore were defamation per se. In a review of each statemen t made on the webs ite pertaining to claimant the arbitrator concluded that:

Defamation per se can be found on page [sic] 3 and 7-8 in an ar ticle entitled “Google Me.” The allegations on th ese pages are particularly c oncerning for the Arbitrator. Statements that Dr. Jackson “has abused her author ity as superintendent; disrespected par ents to the highest degree; vio lated contracts and state and federal laws; [and] threatened employees” will be con sidered defamatory. More particularly, the statements that Claimant vi olated state and federal laws are made with actual malice and sufficient in the Arbitrator’s mind, especially when viewing the website as a whole, to qualify as a ccusations of a crime and, accordingly, defamation per se. Similar statements can be found on page 37 in an article entitled “Have white employees been victi ms of reverse discrimination in WR?

Regarding the statements that 1) claimant “ ‘robs Willow Run bl ind’ by ‘boosting [Larry and Laconda’s] big salaries’, and 2) that Claimant is ‘giving away [Willow Run’s] $$$ [sic]” by “[finding] a way to get Laconda a raise’ ” the arbitrator, citi ng Hodgins v Times Herald Co , 169 Mich App 245, 253; 425 NW2d 522 (1988), found that these statem ents were not accusations of a crime, but instead were strongly worded opinions and politica l speech. The arbitrator concluded that the remaining passages cited by claimant were no t defamation, either because: (1) respondent did not make the statements, (2) the statements were not about claimant, (3) the statements were hyperbole, strongly worded opinion, or politica l speech, or (4) the statements did not contain actual malice.

The arbitrator awarded $360,000 in per se damages, and $140,00 0 in exemplary damages. Respondent had testified at t he pre-termination hearing:

I recall having a meeting with Dr. Jackson it may – maybe Augus t, Septemberish, I’m not sure of the exact date but I think that period of time is close. Dr. Jackson had a prepared agenda for this particular meeting, a rather lon g agenda. And towards the bottom of that agenda there was the name “watchdogs ” and . . . she said that there were some employees that were having difficultywith finding new employment because of what was posted on that web site and . . . they’re going to sue . . . . And she had asked me if I could talk to whoever is responsible for the site and ask them to remove, I guess, information pertaining to -- and at that point in the conversation, she hadn’t me ntioned names, but I think sh e mentioned -- she made reference later in the conversation, like, she didn't want to reveal it at the beginning, and basically she was like, “What should I tell them ?” And I --you know, I’m not a lawyer. I can’t give legal advice. But I think I said something to-4- her along the lines that referenced, “Listen to your attorney” as far as what to tell the individuals that she was counseling with.

Concerning exemplary damages, the arbitrator found that the tes timony showed that, although claimant asked to have the website removed, she did not request a retraction. The arbitrator recognized that, generally, a party must seek a retraction in o rder to recover exemplary damages, citing Cousino v Nowicki , unpublished opinion per curiam of the Court of Appeals, issue d March 30, 2004 (Docket No. 240764), but nevertheless concluded that e xemplary damages should be awarded to claimant because any request for a retraction from r espondent would have “fallen on deaf ears.” The arbitrator d eclined to award attorney fees.

In the circuit court, claimant moved to confirm the award and respondent moved to vacate it. The circuit court granted claimant’s motion, denied respondent’s motion, and entered a judgment for claimant totaling $505,754.50

II

A

Respondent, asserting that the a rbitrator correctly ruled that claimant’s defamation claim was time-barred and that tolling under MCL 600.5855 did not app ly, contends that the circuit court therefore exceeded its limited authority by vacating the portion of the arbitrator’s preremand order dismissing the defamation claim on statute of limi tations grounds. We disagree.

This Court reviews de novo a circuit court’s decision to vacat e an arbitration award. Saveski v Tiseo Architects, Inc , 261 Mich App 553, 554; 682 NW2d 542 (2004). The circuit court’s power to vacate a statutor y arbitration award is very l imited. Gordon Sel–Way, Inc v Spence Bros, Inc , 438 Mich 488, 495; 475 NW2d 704 (1991).

Reviewing courts can only act upon a written record. There is n o requirement that a verbatim record be made of private arbitration proceedings, there are no formal requirements of procedure and practice beyond those assuring im partiality, and no findings of fact or conclusions o f law are required. Thus, from the perspective of the record alone, a reviewing c ourt’s ability to review an awar d is restricted to cases in which an error of law appears from the face of the awa rd, or the terms of the contract of submission, or such documentation as the partie s agree will constitute the record. [ DAIIE v Gavin , 416 Mich 407, 429; 331 NW2d 418 (1982).]

The DAIIE court further explained:

“In many cases the arbitrator’s alleged error will be as equall y attributable to alleged ‘unwarranted’ factfinding as to asserted ‘error of law’ . In such cases the award should be upheld since the alleged error of law cannot be shown with the requisite certainty to have been the essential basis for the ch allenged award and the arbitrator’s findings of fact are unreviewable.” [ Id. at 429.]-5- To merit vacation of an arbitra tion award, an error of law must be evident on the face of the award and

be so egregious, . . . so materially affect the outcome of the arbitration, . . . so plainly demonstrate a disregard of principles fundamental to a fair resolution of the dispute, or . . . so unequivocally generate a legally unsus tainable result, that [the erroneous legal conclusions] cannot be said to be within t he parties’ agreement to arbitrate or the arbitrator’s authority. [ Id. at 430.]

“By ‘on its face’ we mean that only a legal error that is evide nt without scrutiny of intermediate mental indicia will suffice to overturn an arbitration award” a s we may not “engage in a review of an arbitrator’s mental path leading to the award.” Washington v Washington , 283 Mich App 667, 672; 770 NW2d 908 (2009) (quotati on marks and citations om itted).

The period of limitations for claimant’s defamation claim is o ne year. See MCL 600.5805(9). Claimant’s complaint was filed on June 22, 2010. The arbitrator explained that there was no defamation claim in the initial complaint but resp ondents “assume that [claimant’s] defamation claim would relate back to the June 22, 2010 filing under MCR 2.118(D).” Thus, the defamation claim based on statements, which the arbitrator foun d all preceded June 22, 2009, would be time-barred by MCL 600.5805(9) unless the limitations period was tolled.

MCL 600.5855 provides:

If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is lia ble for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is en titled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although th e action would otherwise be barred by th e period of limitations.

The arbitrator found that respond ent fraudulently concealed heridentity as the administrator of the website and author of the challenged posts. On appeal, res pondent merely maintains that the fraudulent concealment of her identity did not trigger tolling under MCL 600.5855 because claimant was nevertheless aware of the cause of action for defa mation at the time the posts were made and before the limitations period expired.

In Int’l Union United Auto Wo rkers of America v Wood , 337 Mich 8, 59 NW2d 60 (1953), the Michigan Supreme Court held that the concealment of a defendant’s identity, as opposed to the concealment of a cause of action, did not trigge r the fraudulent concealment statute. At that time, the fraudulent concealment statute was worded differently:

If any person who is liable to any of the actions mentioned in this chapter, 62 shall fraudulently conceal the cause of such action from the kn owledge of the person entitled thereto, the action may be commenced at any tim e within 2 years after the person who is entitled to bring the same shall discov er that he had such cause of action, although such action would be otherwise barred by the provisions of this chapter. [1948 CL 609.20.]-6- In 1954, the statute was amended:

If any person, who is liable to any of the actions mentioned in this chapter, shall fraudulently conceal the cause of such action, or conceal the identity of any party thereto , from the knowledge of the person entitled thereto, the action may be commenced at any time wihin [sic] 2 years after the person who is entitled to bring the same shall discover that he had such cause of action, although such action would be otherwise barred by the provisions of this chap ter. [ Vega v Briggs Mfg Co , 341 Mich 218, 222; 67 NW2d 81 (1954), quoting 1954 PA 49 (emphasis added).]

In Ross v Fisher , 352 Mich 555; 90 NW2d 483 (1958), the plaintiff was beaten by two police officers. The trial court dismissed the plaintiff’s claim agai nst the officers because it was not filed within the two-year perio d of limitations. On appeal, th e Supreme Court explained that the plaintiff knew he had a cause of action at the time he was beat en up, but the plaintiff maintained that, due to fraudulent concealment, he was unable to learn the identity of the officers until after the limitations period expired. The Court acknowledged that the 1954 amendment to the fraudulent concealment statute included language regarding conc ealment of a party’s identity, but held that it did not result in tolling for the concealment of the identity of a party because, under the plain language of the amendment, tolling was limited to the discovery of a “cause of action.” The Court explained, “T he situation before us then is not so much an ambiguity in the words used in the amendment as the complete omission of an esse ntial ‘pay off’ clause from an essential place in the amended statute.” Id. at 559. Because the amendment did not toll the limitations period on the basis of the discovery of the identit y of a party, the Supreme Court affirmed the dismissal of the pl aintiff’s claim against the off icers.

Thereafter, in 1963, the statute was amended to its current fo rm, including “the identity of the person” in the “pay off cl ause” described by the Court i n Ross :
If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is lia ble for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is en titled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the p eriod of limitations. [MCL 600.585 5 (emphasis added.)]

Unlike the versions of the statute in Wood and Ross , which only allowed for tolling on the basis of the discovery of a cause of action, the plain lang uage of the fraudulent concealment statute now allows for tolling if either the claim or the identity of the person who is liable for the claim is fraudulently concealed. Therefore, we conclude that the arbitrator erred as a matter of law when it ruled that tolling under MCL 600.5855 did not apply because claimant was aware of the cause of action for defamation at the time posts were made on the website even if she did not-7- know the identity of the author of the posts. Accordingly, the circuit court did not exceed its limited authority by vacating that portion of the arbitrator’s pre-remand order. Gordon Sel–Way

, 438 Mich at 495. 1

We also reject respondent’s related argument that, to be entit led to tolling, claimant was required to file her defamation claim against an alternative pa rty, such as John Doe or willowrunwatchdogs.com. The plain language of MCL 600.5855 all ows an action to be “commenced . . . within 2 years after the person who is entitle d to bring the action discovers, or should have discovered, the existence of the claim or the ident ity of the person who is liable for the claim.” Nothing in the statu te requires a plaintiff to com mence an action within the statute of limitations period with a placeholder defendant and then amend the complaint when the identity of the proper defendant is disc overed, as respondent suggests. The absence of such a requirement is deemed to be intentional. This Court may not re ad language into a statute. See Mich Ed Ass'n v Sec of State ( On Rehearing ), 489 Mich 194, 218; 801 NW2d 35 (2011)

. Respondent further argues that claimant’s acceptance of the $1 2,500 in sanctions amounted to a waiver by claimant of tolling through fraudulent concealment. Respondent cites the document signed by both partie s, which is labeled “Satisfac tion of Sanctions Award Portion of Arbitration Award,” and provides:

Claimant, Doris Hope-Jackson, through her attorneys, Darryl K. Segars and Herbert A. Sanders, hereby acknowledges that the $12,500 Sancti ons Award in favor of Claimant against Res pondent Washington, as delineated in the Arbitration Award entered in the above-captioned matter on Octo ber 1, 2012, has been satisfied in full and that this portion of the October 1, 2012, Arbitration Award is not the subject of Claimant’s Motion to Reinstate Case and Vacate and/or Modify Arbitration Award f iled with the Washtenaw County Circuit Court, Case No. 10-680-CD. Claimant furth er agrees that the sanctions portion of that October 1, 2012, Arbitration Award shall not be challenged by C laimant and that Claimant shall not attempt to rei nstate, vacate, and/or modify the award or appeal that portion of the October 1, 2012 Arbitration Award in this a ction or any other action.

“A ‘waiver is the intentional relinquishment or abandonment of a known right.’ ” Acorn Inv Co v Mich Basic Prop Ins Ass’n , 495 Mich 338, 357; 852 NW2d 22 (2014), quoting People v Vaughn , 491 Mich 642, 663; 821 NW2d 288 (2012). In the “Satisfaction of Sanctions” document, claimant merely relinquished any challenge to the “$1 2,500 Sanctions Award.” Although the basis of the sanctions award was respondent’s repe ated false statements, and claimant maintained that responde nt’s false statements impeded discovery of respondent’s

1 Respondent’s reliance on Doe v Roman Catholic Arch Bishop of the Arch Diocese of Detroit

, 264 Mich App 632, 643; 692 NW2d 398 (2004) is misplaced because , in that case, the plaintiff only claimed the cause of action had been concealed and made no claim that the defendant Arch Diocese’s identity, like res pondent’s identity here, had been c oncealed.-8- identity for purposes of filing t he defamation claim within the limitations period and for purposes of MCL 600.5855, nothing in the “Sa tisfaction of Sanctions” doc ument relinquishes a right to challenge the arbitrator’s dismissal of the defamation claim onstatute-of-limitations grounds. Therefore, respondent’s payment of the sanctions and claimant’s signature on the “Satisfaction of Sanctions” document did not amount to a waiver of the challe nge to the dismissal of the defamation claim.

B

Respondent also argues on appeal that the circuit court should have vacated the arbitrator’s post-remand order m aking several factual findings and damages awards. We disagree, in part, a nd agree, in part.

1

Respondent claims that the circuit court should have vacated t he arbitrator’s post-remand order because (a) her statements were not defamatory allegation s of a crime, but rather were just hyperbole, and (b) the arbitrator found that she acted with act ual malice but did not expressly address, in its opinion, that she knowingly made a false statem ent or made a false statement in reckless disregard of the truth. We disagree.

In Michigan, the four basic elem ents of a defamation claim are as follows:

(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 stat ement irrespective of special harm (defamation per se) or the existence of special ha rm caused by publication. [ Ghanam v Does , 303 Mich App 522, 544; 845 NW2d 128 (2014).]

“A communication is defamatory if , considering all the circumst ances, 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.” Ireland v Edwards , 230 Mich App 607, 619; 584 NW2d 632 (1998). Under MCL 600.2911(1), statements imputing a lack of chastity or the commission of a crime constitute defamation per se and are actionable evenin the absence of an ability to prove actual or special damages. Burden v Elias Bros Big Boy Restaurants , 240 Mich App 723, 728; 613 NW2d 378 (2000).

Moreover, “a plaintiff who is a public official may only preva il in a defamation action if he or she establishes that the alleged defamatory statements we re made with ‘actual malice.’ ‘Actual malice’ exists when the defendant knowingly makes a fal se statement or makes a false statement in reckless disregard of the truth.” Smith v Anonymous Joint Enter , 487 Mich 102, 114; 793 NW2d 533 (2010); MCL 600.2911(6).

Without the actual malice requirement, “would-be critics of o fficial conduct may be deterred from voi cing their criticism, even thou gh it is believed to be true and even though it is in fact true, because of doubt wh ether it can be proved in court or fear of the expense of having to do so.” Whe ther the statements are defamatory and whether the evidence presented is sufficient to show actual-9- malice on the part of the defendant present questions of law to be decided by the courts. When a plaintiff who is a public official cannot show actual malice by clear and convincing evidence, t he defendant is entitled to sum mary disposition of the defamation claim. [ Ghanam , 303 Mich App at 531-533 (citations omitted).]

The parties do not dispute that claimant was a public official for purposes of the actual-malice requirement.

A court may hold as a matter of law that a defamatory statemen t is incapable of defamatory meaning. Ireland , 230 Mich App at 619. But questions of fact may exist regardi ng the statement’s potential defamatory meaning. Id . “[E]xpressions of opi nion are protected from defamation actions. However, there is no constitutional protect ion given to false statements of fact, so false statements of fact are not protected from libel suits.” Hodgins , 169 Mich App at 253 (internal citation omitted). Courts recognize that “[t]ech nical inaccuracies in legal terminology employed by nonlawyers,” particularly when “the pop ular sense of a term may not be technically accurate,” should not form the basis for recover y. Rouch v Enquirer & News of Battle Creek Mich , 440 Mich 238, 263; 487 NW2d 205 (1992).

We are mindful of the inherent imprecision of language and the difficulties this poses to any evaluation of the t ruth or falsity of [a statement ], particularly one that rests upon the use of a word with ambiguous implications . . . . To ensure the requisite ‘breathing space’ for free and robust debate on matte rs of public concern, we think it important to allow for imprecision and amb iguity in the choice of language. [ Id. at 263 n 25.]

Statements that cannot be inte rpreted as stating actual facts, such as “rhetorical hyperbole” and “imaginative expr ession” often found in satires, parodies, and cartoons, are protected by the First Amendment. Hustler Magazine v Falwell , 485 US 46, 51; 108 S Ct 876; 99 L Ed 2d 41 (1988); Ireland , 230 Mich App at 617. Terms such as “blackmailer,” “traitor,” “crook,” “steal” and “criminal act ivities” must be read in cont ext to determine whether they are merely exaggerations typically used in public commentary. Greenbelt Cooperative Publishing Ass’n v Besler , 398 US 6, 14; 90 S Ct 2d 1537; 26 L Ed 2d 6 (1970); Kevorkian v AMA , 237 Mich App 1, 7-8; 602 NW2d 233 (1999).

The context and forum in which statements appear also affect w hether a reasonable reader would interpret the statements as asserting p rovable facts. Courts that have considered the matter have concluded that Inte rnet message boards and similar communication platforms are generally regard ed as containing statements of pure opinion rather than statements or implicatio ns of actual, provable fact . . . . “Indeed, the very fact that most of the p osters remain anonymous, or pseudonymous, is a cue to discount their statemen ts accordingly.” [ Ghanam , 303 Mich App at 546-547, quoting Summit Bank v Rogers , 206 Cal App 4th 669, 696-698; 142 Cal Rptr 3d 40 (2012).]

If a reasonable reader would unde rstand such words as merely “r hetorical hyperb ole” meant to express strong disapproval rathe r than an accusation of a crime or actual misconduct, they cannot be regarded as defamatory. Greenbelt , 398 US at 14; Ireland , 230 Mich App at 618-619.-10- In Ghanam , the plaintiff claimed that statements made on an Internet mes sage board (The Warren Forum) constituted actionable statements of fact that ac cused him of stealing public property. Id. at 525, 550. This Court held:

Review of these statements in context leads us to conclude that they cannot be regarded as assertions of fact but, instead, are only acerbic c ritical comments directed at plaintiff based on facts that were already public k nowledge, namely the apparent misappropriation of a large amount of rock salt an d the controversial purchase of additional garbage trucks. The joking, hostile, andsarcastic manner of the comments, the use of an emoticon showing someone sticking t heir tongue out, and the far-fetched suggestion that plaintiff somehow hid over 3,600 tons of salt near the city sports complex all indicate that these comments w ere made facetiously and with the intent to ridicule, criticize, and den igrate plaintiff rather than to assert knowledge of actua l facts. Examination of the st atements and the circumstances under which they were made show them to be mere e xpressions of rhetorical hyperbole and not de famatory as a matter of law. [ Id. at 550.]

In Hodgins , the defendant published an editorial letter, which stated tha t the plaintiffs (kennel owners) would sell dogs to anyone, and then stated that some of the animals were used for dog fighting. 169 Mich App 248-250. Dog fighting and the sale of animals for dog fighting are state and federal cr imes. This Court held,

This is not the same as calling someone a “blackmailer” or a “c rook” in a strongly worded opinion statement. The Burgess letter’s language accuses or strongly implies that plaintiffs are involved in illegal or wrongful con duct involving dog fighting and moves across the line dividing strongly worded opi nion from accusation of crime. These statements are not protected by the First Amendment from libel suits. [ Id. at 253.]

In this case, in a November 3, 2008 article (“Google Me”), res pondent wrote:

“Thank you, Google, for helping get the word out on how Doris H ope Jackson has abused her authority as superintendent; disrespecting parents t o the highest degree; violated contracts and st ate and federal laws; threaten ed employees; maintained an environment where staff is punished for speaking to board members or for questioning things; hired unqualified staff and paying them at top of the pay scale; discriminated against white and black employe es; reduced services to special needs students; moved teachers into positio ns so that they could be deemed not highly qualified and have their pay reduced ; spawned the highest number of grievances and arbitrations our district has ever seen.”

Although the arbitrator found that many of the statements in th at article were defamatory, it concluded that only the statement that claimant violated “state and federal laws” amounted to defamation per se.

In an August 28, 2008 article (“Have white employees been vict ims of reverse discrimination in WR?), respondent wrote:-11- There has been alot of talk about Dr. Jackson blatantly abusing her power and administrative authority in the district to “muscle” people outof jobs. Jackson has changed titles, given raises to some. As for others, well, she has demoted, demoralized, threatened and removed them . . . Of these horrifi c deeds, the most noticeable aspect is that the bad deeds have been done at the e xpense of white teachers and staff in the district. If Hope Jackson was a whit e woman, everyone in the district would be screaming bloody murder! But should these bad deeds go unpunished just because she is black? I think not! Jackson so sheepishly does her dirty work in such a way that listening to her paralyzes you, a nd suddenly fills you with fear . . . for your job.

Jackson needs to be reported to t he federal and state authoriti es. Her behavior and acts are against the law. Some one, everyone needs to blow the whistle on her. Stop fearing retaliation and do so mething to stop this horrible behavior that the BOE obviously condones.

Jackson seems to have deep rooted issues concerning race relati ons. Perhaps going to an all-white school in the 60’s and 70’s left too deep a scar for her to see past her own wrong doings and mistr eatments of WR staff.

The arbitrator found that respondent’s statement that claimant should be reported to the federal and state authorities because “[ h]er behavior and acts are agai nst the law” was defamation per se.

As a verbatim record of the arbitration proceedings is not requ ired, DAIIE , 416 Mich at 429, the factual record considered by the arbitrator in this ca se is incomplete on appeal. As claimant argues, the arbitrator could have established that cla imant was a public officer, see MCL 380.471a, and that the allegat ions that respondent made on the website about claimant’s violation of state and federal la ws—when considered in light of all of her statements about claimant’s “abuse[] of authority” and the context of the websit e—could have amounted to a charge of misconduct in office, a felony under MCL 750.505. Se e People v Perkins , 468 Mich 448, 456; 662 NW2d 727 (2003) (“An officer could be convicted o f misconduct in office (1) for committing any act which is itself wrongful, malfeasance, (2) f or committing a lawful act in a wrongful manner, misfeasance, or (3) for failing to perform any act that the duties of the office require of the officer, nonfeasance.”). Even though the forum used to make the statements was a blog, which tends to be a vehic le for expression of opinions, Ghanam , 303 Mich A pp at 546-547, the arbitrator could have conclude d that this website indicated that it was providing more than just opinions—indentifying itself as the Willow Run Community A ction Team and taking responsibility for “Keeping Watchful Eyes on Willow Run.” The arbitrator could have also concluded that, unlike the posts in Ghanam , the statements were not joking or sarcastic; rather, they urged the public to contact the authorities for action. B ecause the circuit court could not speculate regarding the arbitrator’s mental path in concluding that the statements implied that claimant committed a crime and were not hyperbole leading to th e award, and the circuit court-12- could not review the arbitrator’s findings of fact, it properly declined to vacate the post-remand order. DAIIE, 416 Mich at 429; Washington , 283 Mich App at 672. 2

Respondent further argues that the arbitrator exceeded its aut hority because it found that she acted with actual malice but did not expressly find, in its opinion, that she knowingly made a false statement or made a false statement in reckless disregard of the truth. The arbitrator was not required to explain its findings of fact regarding actual m alice. See Saveski v Tiseo Architects, Inc , 261 Mich App 553, 555; 682 NW2d 542 (2004) (“no findings of f act or conclusions of law are required”). Respondent cites statements on the website that she claims made her allegations of an abuse of authority substantially tru e. But the arbitrator could have concluded that, even if claimant abused her authority in the fe w narrow and specific ways cited by respondent, there was no basis for the remaining sweeping al legations of abuse of authority. Because there is no legal error clearly appearing on the face o f the award and we can only speculate as to the reasons for the arbitrator’s decision, Washington , 283 Mich App 672, the circuit court also did not err by declining to vacate the arbit rator’s post-remand order on this ground.

2

Respondent argues that the arbitrator committed clear legal er ror by awarding exemplary damages on the basis of Cousino v Nowicki , unpublished opinion per curiam of the Court of Appeals, issued March 30, 2004 (Docket No. 240764). 3 We agree.

MCL 600.2911(2) provides:

(a) Except as provided in subdivision (b), in actions based on libel or slander the plaintiff is entitled to recover only for the actual damages wh ich he or she has suffered in respect to his or her property, business, trade, pr ofession, occupation, or feelings.

(b) Exemplary and punitive damages shall not be recovered in ac tions for libel unless the plaintiff, before inst ituting his or her action, giv es notice to the defendant to publish a retraction and allows a reasonable time to do so, and proof of the publication or correction shall be admissible in evidenc e under a denial on the question of the good faith of the defendant, and in mitigat ion and reduction of exemplary or punitive damages. For libel based on a radio or te levision broadcast, the retraction shall be made in t he same manner and at the same time of the day as the original libel; for libel b ased on a publication, the retra ction shall be published in the same size type, in the same editions and as far as pract icable, in substantially the same position as the original libel; and for other libel, the

2 In light of this conclusion, we need not decide whether the ar bitrator could have alternatively found defamation per se from the ha rm to claimant’s business re putation.

3 Unpublished decisions are not b inding on this Court. MCR 7.21 5(C)(1).-13- retraction shall be published or communicat ed in substantially the same manner as the original libel.

MCL 600.2911(2)(b) expressly prohibits an award of exemplary d amages unless the plaintiff gives notice to the def endant to publish a retraction . Here, the arbitrator found that claimant did not give such notice and, again, this factual find ing is not reviewable. DAIIE, 416 Mich at 429.

The arbitrator nevertheless awarded exemplary damages by relyi ng on Cousino . In that case, the defendant sent a retrac tion just two days before fili ng a countercomplaint against the plaintiff. In deciding whether it was error to instruct the ju ry regarding exemplary damages in light of the short period of time given to publish the retracti on, this Court noted that “the trial court instructed the jury that it would award exemplary damages if it found that Kiefer requested a retraction and allowed reasonable time for publication of the retraction.” This Court further stated that, given the plaintiff’s ongoing efforts to malign th e defendant, “there is no indication that even with an earlier request for retraction that plaintiff would have retracted his comments.”

The arbitrator found that Cousino stood for the proposition that a retraction is not required in all circumstances, and concluded that because respo ndent “maintains little, if any, credibility, combined with the t estimony taken during the heari ng, there is no doubt in the Arbitrators [sic] mind that suc h a request would have fallen on deaf ears.” On the basis of these legal and factual findings, th e arbitrator awarded $140,000 in exemplary damages despite claimant’s failure to request a retraction.

The arbitrator’s ruling is an e rror of law on the face of the order. A request for a retraction is mandatory under MCL 600.2911(2). In Cousino , the defendant sent a request for a retraction in accord with the statute and there was merely a qu estion of fact whether it was sent within a reasonable time. Here, in contrast, claimant did not satisfy the mandatory statutory retraction requirement. Therefo re, the circuit court erred by failing to vacate the award of exemplary damages. 4

Claimant maintains that the failure to request a retraction is an affirmative defense, which must be raised in the first res ponsive pleading, and because it was not raised by respondent in her first responsive pleading, it is waived. Claimant cites no aut hority establishing that the failure to request a retraction is, in fact, an affirmative defense under MCR 2.111(F)(3). Moreover, the lower court record for docket number 10-680-DC is not before th is Court and claimant has not attached any exhibits to her brie f on appeal, such as the regis ter of actions or any pleadings, to evidence the character and conten t of defendant’s first respons ive pleading. Without an adequate record to support claimant’s argument, this is yet another fact ual matter that is unreviewable because of the nature of the arbitration proceeding. DAIIE, 416 Mich at 429.

3

4 In light of this conclusion, we decline to address respondent’ s argument that exemplary damages were improper because she is not a media defendant.-14- Last, respondent argues that the arbitrator improperly awarded$360,000 in presumed damages because that is not a “nominal amount.” But respondent acknowledges Burden , in which this Court explained the history of presumed damages:

Where defamation per se has occurred, the person defamed is ent itled to recover general damages in at least a nominal amount. Slater v Walter , 148 Mich 650, 652-653; 112 NW 682 (1907); Scougale v Sweet , 124 Mich 311, 323, 325; 82 NW 1061 (1900); Sias v Gen Motors Corp , 372 Mich 542, 551-552; 127 NW2d 357 (1964). Where the defamatory publication is “maliciously publi shed,” the person defamed may recover “substantial damages” even where no special damages could be shown. Whittemore v Weiss , 33 Mich 348, 353 (1876). Whether nominal or substantial, where there is defamation per se, the presumpti on of general damages is well settled. McCormick v Hawkins , 169 Mich 641, 650; 135 NW 1066 (1912); Clair v Battle Creek Journal Co , 168 Mich 467, 473-474; 134 NW 443 (1912); Simons v Burnham , 102 Mich 189, 204; 60 NW 476 (1894); In re Thompson , 162 BR 748, 772 (ED Mich 1993). [ Burden , 240 Mich App at 728.]

Although nominal damages are defined as “a trivial sum of moneyawarded to a litigant who has established a cause of action but has not established that he i s entitled to compensatory damages,” 47 Restatement Torts, 2d, § 907, presumed damages nee d not just be nominal, but rather “at least a nominal amount.” Moreover, under Burden , they may be substantial. In this case, the arbitrator relied on the evidence in the record and i ts judicial experience to conclude that $360,000 in presumed damages were appropriate. Any review of that factual finding is precluded by DAIIE, 416 Mich at 429.

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On cross-appeal, claimant argues that the arbitrator erred by failing to award economic damages (including damages for emotional distress) related to h er termination from Willow Run. But the arbitrator relied on its previous finding that Willow R un did not breach its contract with claimant by terminating her 5 and the arbitrator made the factual finding that respondent’s posts on the website did not contribute to her termination. Because the arbitrator’s f indings of fact

5 Claimant suggests the arbitrator was not bound by its previous findings about her breach of contract claim merely because the circuit court subsequently re versed the dismissal of the defamation claim involving posts to the website. But the circu it court affirmed the arbitrator’s decision regarding the breach of contract claim. Therefore, th e arbitrator was bound by the law of the case. Grievance Administrator v Lopatin , 462 Mich 235, 259; 612 NW2d 120, 134 (2000) (“Under the law of the case doctrine, if an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same.”) (citations and quotations marks o mitted).-15- were unreviewable, the circuit court did not err by affirming t he award despite the arbitrator’s decision not to award economic damages. DAIIE , 416 Mich at 429.

Affirmed. No costs under MCR 7.219 because neither of the par ties prevailed in full.

/s/ Kurtis T. Wilder /s/ Deborah A. Servitto /s/ Cynthia Diane Stephens