KEITH E MINO JR V CLIO SCHOOL DIST
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STATE OF MICHIGAN
COURT OF APPEALS
KEITH E. MINO, JR. and NANCY S. MINO,
FOR PUBLICATION
January 14, 2003
9:25 a.m.
Plaintiffs-Appellants,
v
No. 232279
Genesee Circuit Court
LC No. 99-066407-CK
CLIO SCHOOL DISTRICT, FAY LATTURE,
JOLENE PEACOCK, SALLY VANROEYEN,
WANDA EMMERLING, BRUCE
FAIRWEATHER, RON MAYGAR, JUDITH
BARRETT, VERN KAMP, and RICH LUTGENS,
Defendants-Appellees.
Updated Copy
March 28, 2003
Before: O'Connell, P.J., and White and B. B. MacKenzie*, JJ.
O'CONNELL, P.J.
Plaintiffs Keith E. Mino, Jr.,1 and Nancy S. Mino appeal as of right the circuit court's
order granting summary disposition pursuant to MCR 2.116(C)(10)2 in favor of defendants.3
1
We will refer to Keith as "Dr. Mino."
2
Although defendants brought their motion for summary disposition pursuant to MCR
2.116(C)(8) and (10), the parties and the circuit court relied on documentary evidence beyond the
pleadings. In this situation, we treat the motion as having been granted pursuant to MCR
2.116(C)(10), and we examine both the pleadings and additional documents. Kefgen v Davidson,
241 Mich App 611, 616; 617 NW2d 351 (2000). In addition, the circuit court determined that
Dr. Mino agreed to a release of claims that he had before the parties signed the severance
agreement. We note that the issue on appeal is whether there were material issues of fact that
preclude summary disposition and not whether there was an effective release.
3
When this cause of action accrued, defendants were Clio School District; assistant
superintendent Fay Latture; school board members Sally VanRoeyen and Jolene Peacock; school
(continued…)
________________________________
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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I. THE ISSUE
This case presents a question of first impression in this state regarding the legality of a
confidentiality clause in an employment severance agreement that essentially prohibits the parties
from disparaging each other after the employment relationship terminates. In light of MCL
380.1230b(6), which prohibits a school district or board from "enter[ing] into . . . any . . .
contract or agreement that has the effect of suppressing information about unprofessional
conduct of an employee or former employee," we hold that an employment confidentiality clause
of this nature is void and unenforceable. We also hold that plaintiffs cannot sustain their
noncontractual claims. Therefore, we affirm the circuit court's order granting summary
disposition to defendants.
II. BASIC FACTS AND PROCEEDINGS
Dr. Mino began his employment as superintendent of the Clio School District during the
last week of June 1997. In September 1997, problems developed in Dr. Mino's performance as
superintendent. Superintendent secretary Diane Schaupp felt that Dr. Mino did not take charge
of the position because he did not attempt to meet with staff and did not attend organizational
meetings. She also testified that Dr. Mino received excessive telephone calls from his former
place of employment. In addition, Schaupp observed Dr. Mino speak loudly and angrily with
public relations director Wanda Emmerling regarding a district publication and heard Dr. Mino
say he could fire her despite the fact that her husband was a school board member.
In addition, there were difficulties between Dr. Mino and assistant superintendent Fay
Latture. According to Schaupp, Latture had to assume extra duties that Dr. Mino was supposed
to perform. Latture informed her secretary that Dr. Mino was having an extramarital affair and
that Dr. Mino made sexual telephone calls. In 1997 and 1998, Latture also informed the district
payroll clerk that Dr. Mino inappropriately touched local waitresses. In January 1998, Latture
filed a formal oral complaint against Dr. Mino with the school district personnel committee.
Latture reiterated her concerns, which Dr. Mino denied. Other concerns voiced at the personnel
committee meeting included Dr. Mino's leadership, lack of visibility, and his negotiations with
the union.
In January 1998, Dr. Mino decided to look for work outside the school district. In April
1999, Dr. Mino and the district entered into a "letter of understanding" establishing a severance
agreement. It stated, in part: "Unless required by law to do so, the Clio Area Schools will not
disseminate negative information about Dr. Mino to any person or organization inside or outside
of the Clio Area Schools." (Emphasis in original.) The severance agreement also included a
release of claims against both parties, and effected a "buyout" of Dr. Mino's three-year contract.4
(…continued)
board public relations director Wanda Emmerling; and school principals Bruce Fairweather, Ron
Maygar, Judith Barrett, Vern Kamp, and Rich Lutgens.
4
After Dr. Mino's contract was bought out, the defendants who were school principals wrote a
letter to the editor of local newspapers about the matter. Lutgens testified that the letter was not a
(continued…)
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After fielding other job inquiries, in May 1999, Dr. Mino went to Pocatello, Idaho, to
interview for a superintendent position. The Pocatello Board of Education appointed four people
to a search committee to go to Michigan in order to investigate Dr. Mino. One committee
member testified that board members at Dr. Mino's former place of employment said that they
would not hire Dr. Mino again. Many of the committee members testified that, at first, Clio
employees did not say anything negative about Dr. Mino. However, committee member
Gwendalyn C. Lloyd testified that Jolene Peacock eventually told her that they might hear rumors
about inappropriate touching involving Dr. Mino, and that there was an agreement not to provide
any negative information about Dr. Mino. Nonetheless, Lloyd testified that some of the
committee members were told not to believe the rumors. Peacock also informed some of the
committee members that there were community concerns about Dr. Mino's leadership style, his
management of the budget, and unsubstantiated rumors that he engaged in sexual improprieties,
but she stated that these views were not her personal views.
Pocatello trustee J. Thomas Bernasek testified that during a special meeting with the
school board, the search committee informed the board of the rumors they heard, but stated that
the rumors were unsubstantiated and maintained that they did not recommend Dr. Mino because
of his leadership style only. Bernasek stated that the school board did not want to hire a
superintendent "with that type of baggage" regardless of its truth, noting that the Pocatello School
District already had its own problems with public perception. On June 2, 1999, the Pocatello
School District informed Dr. Mino that he was not being offered the superintendent position.5
In October 1999, plaintiffs filed their eleven-count complaint.6 Following defendants'
motion for summary disposition, the circuit court granted the motion, finding that the release—
(…continued)
comment on Dr. Mino's performance, but to assuage the community's concerns that the situation
was not properly handled. Dr. Mino alleged that the following excerpt of the letter was
defamatory: "Contrary to some perceptions, the concerns over the leadership being provided by
Dr. Mino came from many people and much of the information gathered by the board was
received in confidence."
5
On June 9, 1999, Emmerling wrote a memo to the union representative and distributed it to the
district regarding the representative's previous statements about Emmerling. Plaintiffs alleged it
was defamatory because Emmerling noted in the letter that Dr. Mino had yelled at her and
threatened to fire her.
Finally, on June 10, Peacock wrote a letter to school district employees regarding their
collective bargaining agreement's lack of a provision for administrative leave for professional
development purposes. Plaintiffs also alleged that this letter was defamatory because Peacock's
letter stated that Dr. Mino should have negotiated for professional development days.
6
Plaintiffs assert on appeal that the conspiracy claim and all claims brought against VanRoeyen
were properly dismissed. Furthermore, at oral argument, plaintiffs noted their withdrawal of
claims for one of two counts of defamation against Peacock (for her letter regarding the union
contract); the defamation claim against principals Fairweather, Barrett, Kamp, Maygar, and
(continued…)
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which expressly prohibited claims the parties had before the severance agreement was signed—
precluded most of plaintiffs' claims. The court also found that there were no genuine issues of
material fact on the remainder of plaintiffs' claims.
III. BREACH OF CONTRACT
A trial court's grant or denial of summary disposition under MCR 2.116(C)(10) is
reviewed de novo on appeal. Liberty Mut Ins Co v Michigan Catastrophic Claims Ass'n, 248
Mich App 35, 40; 638 NW2d 155 (2001). A motion for summary disposition tests whether there
is factual support for a claim. Universal Underwriters Group v Allstate Ins Co, 246 Mich App
713, 720; 635 NW2d 52 (2001). Affidavits, pleadings, depositions, admissions, and
documentary evidence are considered in reviewing a motion for summary disposition pursuant to
MCR 2.116(C)(10), and the evidence is viewed "'in the light most favorable to the party
opposing the motion.'" Universal Underwriters, supra at 720, quoting Quinto v Cross & Peters
Co, 451 Mich 358, 362; 547 NW2d 314 (1996). Summary disposition is proper under MCR
2.116(C)(10) if the documentary evidence shows that there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Universal Underwriters, supra
at 720.
On appeal, plaintiffs allege breach of contract against Latture and Peacock (involving her
conversation with the Pocatello search committee) for "disseminat[ing] negative information
about Dr. Mino[.]"7 Plaintiffs point to the following instances: (1) Lloyd's testimony that
Peacock raised concerns about leadership style and how the money was being managed for the
school district; (2) Lloyd's testimony that Peacock told her there were unsubstantiated or alleged
rumors that Dr. Mino engaged in sexual improprieties; (3) Lloyd's testimony that Peacock could
not give the committee her personal view because a "gag order" was in place; (4) Lloyd's
testimony that Latture stated that her leadership style was almost the exact opposite of Dr. Mino's
leadership style in that she was "hands on," interested in minute detail, and interested in
complying with stated standards; and (5) Clio School District trustee David Hemingway's
testimony that a committee member indicated that Latture informed them of the "buy out, the gag
order," and sexual improprieties involving Dr. Mino. In this case, the circuit court found no
evidence of a breach of contract, noting that there was no conduct authorized by the Clio Board
of Education. The circuit court further determined that, even if it were able to find such conduct
or communications, MCL 380.1230b(6) vitiated such a claim. We agree with the circuit court.
(…continued)
Lutgens (regarding their letter to the editor); and the defamation, intentional infliction of
emotional distress, and tortious interference claims against the school district.
7
Plaintiffs' breach of contract argument on appeal does not address the remaining defendants'
conduct. Thus, we will only discuss Peacock's and Latture's conduct regarding breach of
contract. See MCR 7.212(C)(5). In any event, because we hold that the confidentiality clause
was void and unenforceable as a matter of law, the rest of plaintiffs' original claims within the
breach of contract issue were also properly dismissed by summary disposition.
-4-
The primary goal of statutory interpretation is to give effect to the intent of the
Legislature. Lamp v Reynolds, 249 Mich App 591, 597; 645 NW2d 311 (2002), citing In re
Messer Trust, 457 Mich 371, 379-380; 579 NW2d 73 (1998). To determine legislative intent, a
reviewing court must first look to the statutory language. Lamp, supra at 597, citing Charboneau
v Beverly Enterprises, Inc, 244 Mich App 33, 40; 625 NW2d 75 (2000). Statutory language
should be construed reasonably, keeping in mind the purpose of the act. Draprop Corp v Ann
Arbor, 247 Mich App 410, 415; 636 NW2d 787 (2001). Accordingly, "[i]f the plain and ordinary
meaning of the statute's language is clear, judicial construction is inappropriate." Lamp, supra at
597.
MCL 380.1230b provides, in relevant part:
(6) The board or an official of a school district, local act school district,
public school academy, intermediate school district, or nonpublic school shall not
enter into a collective bargaining agreement, individual employment contract,
resignation agreement, severance agreement, or any other contract or agreement
that has the effect of suppressing information about unprofessional conduct of an
employee or former employee or of expunging information about that
unprofessional conduct from personnel records. Any provision of a contract or
agreement that is contrary to this subsection is void and unenforceable. This
subsection does not restrict the expungement from a personnel file of information
about alleged unprofessional conduct that has not been substantiated.
* * *
(8) As used in this section:
* * *
(b) "Unprofessional conduct" means 1 or more acts of misconduct; 1 or
more acts of immorality, moral turpitude, or inappropriate behavior involving a
minor; or commission of a crime involving a minor. A criminal conviction is not
an essential element of determining whether or not a particular act constitutes
unprofessional conduct. [Emphasis added.]
The confidentiality clause in the contract in question states:
7. Unless required by law to do so, the Clio Area Schools will not
disseminate negative information about Dr. Mino to any person or organization
inside or outside of the Clio Area Schools. Unless required by law to do so, Dr.
Mino will not disseminate negative information about the Clio Area Schools . . . .
[Emphasis in original.]
In the context of employment actions, our Supreme Court has defined "misconduct" in the
following manner:
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"The term 'misconduct' . . . is limited to conduct evincing such willful or
wanton disregard of an employer's interests as is found in deliberate violations or
disregard of standards of behavior which the employer has the right to expect of
his employee, or in carelessness or negligence of such degree or recurrence as to
manifest equal culpability, wrongful intent or evil design, or to show an
intentional and substantial disregard of the employer's interests or of the
employee's duties and obligations to his employer." [Carter v Employment
Security Comm, 364 Mich 538, 541; 111 NW2d 817 (1961) (unemployment
action), quoting Boynton Cab Co v Neubeck, 237 Wis 249, 259-260; 296 NW 636
(1941).]
It is clear that the contractual phrase "negative information" generally encompasses the
statutory phrase "unprofessional conduct." See Random House Webster's College Dictionary
(2000) (definition of "negative"); Lamp, supra at 597 (statute's plain language controls). The
confidentiality clause in the severance agreement precludes the "dissemination of negative
information" about Dr. Mino except in circumstances "required by law . . . ." MCL 380.1230b
precludes a school district or board from entering into a severance agreement that "has the effect
of suppressing information about unprofessional conduct of an employee or former employee . . .
." Because the statute precludes entering into an agreement providing exactly what the
confidentiality clause states in this case, we hold that the clause is void and unenforceable as a
matter of law. Id.; see also American Trust Co v Michigan Trust Co, 263 Mich 337, 339; 248
NW 829 (1933) (a contract in violation of statute is an illegal contract and is void).
Consequently, plaintiffs cannot maintain a breach of contract action based on this confidentiality
clause.8 See id.
IV. DEFAMATION9
On this claim, the circuit court determined that it was impossible to conclude from the
record that anyone made alleged defamatory statements, and that there was no evidence of actual
malice. In addition to citing the release of claims provision, the circuit court further found that
there was a qualified privilege to speak in meetings. Regarding the statements made to the
Pocatello search committee after the severance agreement was signed, the circuit court
determined that they were insubstantial.
"A communication is defamatory if, under all of the circumstances, it tends to so harm the
reputation of an individual that it lowers the individual's reputation in the community or it deters
8
Even if we were to hold this confidentiality clause enforceable, in light of this statute, it would
be rendered meaningless because of its terms barring this clause "except as required by law." Cf.
Hoste v Shanty Creek Mgt, Inc, 459 Mich 561, 574; 592 NW2d 360 (1999) (a court should avoid
a construction that renders any part of a statute nugatory).
9
Plaintiffs have not raised on appeal the defamation claim against Latture as it relates to the
claim that Latture made defamatory statements about Dr. Mino to the Pocatello search
committee. Instead, plaintiffs seem to rely on their breach of contract claim with regard to these
comments.
-6-
others from associating or dealing with the individual." Kefgen v Davidson, 241 Mich App 611,
617; 617 NW2d 351 (2000). In order to establish a claim of defamation, a plaintiff must show:
(1) a false or defamatory statement concerning the plaintiff; (2) an unprivileged publication to a
third party; (3) fault amounting to at least negligence on the part of the publisher; and (4) either
actionability of the statement irrespective of special harm (defamation per se) or the existence of
special harm caused by publication (defamation per quod). Id. "When addressing a defamation
claim, a reviewing court is required to make an independent examination of the record to ensure
against forbidden intrusions into the field of free expression." Id.
Because Dr. Mino is a public figure, he "must prove by clear and convincing evidence
that the publication was a defamatory falsehood and that it was made with actual malice through
knowledge of its falsity or through reckless disregard for the truth." Id. at 624. "'Actual malice is
defined as knowledge that the published statement was false or as reckless disregard as to
whether the statement was false . . . . [I]ll will, spite, or even hatred, standing alone, do not
amount to actual malice.'" Ireland v Edwards, 230 Mich App 607, 622; 584 NW2d 632 (1998),
quoting Grebner v Runyon, 132 Mich App 327, 332-333; 347 NW2d 741 (1984) (citations
omitted). Whether actual malice exists is a question of law that must be determined by clear and
convincing evidence. Kefgen, supra at 624-625. We will address each group of defendants in
turn.
A. PLAINTIFFS' DEFAMATION CLAIM AGAINST THE CLIO PRINCIPALS
We disagree with plaintiffs' contention that there are genuine issues of material fact that
preclude summary disposition of the defamation claim against Clio principals Bruce Fairweather,
Judith Barrett, Vern Kamp, Ron Maygar, and Rich Lutgens. Plaintiffs have failed to meet their
burden to demonstrate by clear and convincing evidence that the statement made in the
principals' letter was a defamatory falsehood and that it was made with actual malice through
knowledge of its falsity or through reckless disregard for the truth. Id. at 624. First, there is no
evidence that the statement was false or defamatory because it is unlikely that the challenged
statement alone would harm Dr. Mino's reputation in the community or deter others from
associating or dealing with him. See id. at 617. The paragraph from which the statement came
reads:
We would like to state, for the record, that we feel that every member of
the board of education was committed to gathering all of the information he or she
could, and agonized over finding the best solution for the good of the community
and Clio students. There were no easy choices, and the solution arrived at was
probably the best of several tough alternatives. Contrary to some perceptions, the
concerns over the leadership being provided by Dr. Mino came from many people
and much of the information gathered by the board was received in confidence.
When read in context, the paragraph confirms the principals' testimony that the letter was
written to support the actions of the school board rather than to attack Dr. Mino's leadership
qualities. Second, even if the statement was false or defamatory, plaintiffs have failed to show
by clear and convincing evidence that the statement was made with actual malice. Id. Plaintiffs
-7-
present no evidence that the principals made up the statement. Further, plaintiffs have
demonstrated nothing more than insufficient investigation of the statement by some of the
principals, and this Court in Ireland, supra at 622, specifically stated insufficient investigation
does not establish reckless disregard. Accordingly, the circuit court properly granted defendants'
motion for summary disposition regarding this claim.
B. PLAINTIFFS' DEFAMATION CLAIM AGAINST EMMERLING
Plaintiffs contend that school board public relations director Emmerling defamed Dr.
Mino by circulating a memorandum she wrote to a union representative in which she attacked Dr.
Mino's leadership style by stating that he called her into his office, screamed and yelled at her,
and that he threatened to fire her several times. Plaintiffs contend that Emmerling's assertions are
not true, and that there is an issue of fact regarding whether Emmerling was fabricating the story.
Specifically, plaintiffs alleged in their complaint that the following sentence was false or
defamatory: "As you know, the real reason I came to see you was to ask if it was or was not true
that you had said things about me in my job; things that Keith Mino had referenced when he had
called me into his office, screaming at me and threatening to fire me, then pressuring me as to
why members of my family, including my daughter, don't support him, then threatening to fire
me again." We disagree with plaintiffs' position on this issue.
In our view, plaintiffs have failed to demonstrate actual malice by clear and convincing
evidence. At the outset, we note that there is some support for Emmerling's assertion. See id. at
616, 617. Schaupp testified that during the incident, she told Emmerling that Dr. Mino stated
about her, "I don't care if her husband is a member of the board of education, I could fire her right
now." Schaupp also testified that Dr. Mino initially spoke to Emmerling in a loud manner and
Dr. Mino was angry. Plaintiffs merely contend that there is a question of fact whether
Emmerling fabricated the story, which is tantamount to a reckless disregard for the truth.
"Reckless disregard for truth is not established merely by showing that the statements were made
with preconceived objectives or insufficient investigation." Id. at 622 (quotation omitted).
Further, reckless disregard is measured by whether the publisher entertained serious doubts
concerning the truth of the statements published. Id. Thus, plaintiffs' general allegations of
malice are insufficient to create a genuine issue of fact regarding whether Emmerling published
the statement with actual malice. See also Kefgen, supra at 624.
C. PLAINTIFFS' DEFAMATION CLAIM AGAINST PEACOCK
Plaintiffs state that Peacock published a document following the signing of the severance
agreement that made unfounded allegations where it was clear from the context of the letter that
she was referring to Dr. Mino. Finally, plaintiffs contend that Peacock made defamatory
statements to the Pocatello search committee. We also disagree with these claims.
The challenged June 10, 1999, letter—addressed to the employees of the Clio schools—
reads in relevant part:
-8-
I am writing this letter to address some of the rumors that are circulating
around the district. I am very disheartened that some people in leadership
positions would spread such rumors. . . .
First, I am pro-education. . . . The problem I do have with (and the only
reason I voted against) the contract with the [union] is that I believe it is [sic]
violation of the law. According to the State Director of School Improvement and
Accountability Programs, Barb Knutson, and the GISD Staff Development
Coordinator, Traci Valentine, the Revised School Code states that the school
district shall provide 2 days of professional development in 1998-99, 3 days in
1999-2000, 4 days in 2000-01, and 5 days in each of 2001-2008. Call the ISD.
We do not have these provisions and are in violation. I brought this up at several
executive session discussions of negotiations but was repeatedly told that it was
ok because there was no one to check up on us so it wouldn't matter. I do not
believe this is the right thing to teach our students, nor is it the right thing for our
staff! [Emphasis in original.][10]
The circuit court properly granted defendants' motion for summary disposition with
respect to this issue. The letter does not concern Dr. Mino and makes no reference to Dr. Mino.
The letter clearly addresses Peacock's position regarding why she voted against a contract with
the union and her belief that the contract did not contain a provision for certain development
days. Further, even if the statements were defamatory, plaintiffs have failed to show actual
malice by clear and convincing evidence. See Ireland, supra at 622. Accordingly, the circuit
court did not err in granting defendants' motion for summary disposition with respect to this
claim either.
Moreover, regarding plaintiffs' claim that Peacock made defamatory statements to the
Pocatello search committee, plaintiffs were unable to show this by clear and convincing
evidence. Lloyd testified that Peacock voiced her concerns over Dr. Mino's leadership style and
the management of the school budget. In order for a statement to be actionable, the statement
must be provable as false. Id. at 616, 617. These statements were subjective opinions and are
not provable as false. Id. Regarding Peacock's statements about rumors concerning sexual
improprieties, plaintiffs do not deny that there were certain rumors about Dr. Mino. Thus,
plaintiffs have failed to demonstrate that Peacock's statements were defamatory falsehoods and
that the statements were made with actual malice through knowledge of their falsity or through a
reckless disregard for the truth. See Kefgen, supra at 624.
V. TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIP OR EXPECTANCY
Plaintiffs claim that Dr. Mino had the expectancy of obtaining employment as the
superintendent of the Pocatello School District, that Latture and Peacock were aware of that
10
Plaintiffs alleged that the defamatory portion was the last part of the paragraph beginning with
the phrase "The problem I do have . . . ."
-9-
expectancy, that Latture and Peacock intentionally provided negative information about Dr. Mino
to the Pocatello search committee, and that Dr. Mino did not obtain employment with the
Pocatello School District. We disagree.
The elements of tortious interference with a business relationship are the
existence of a valid business relationship or expectancy, knowledge of the
relationship or expectancy on the part of the defendant, an intentional interference
by the defendant inducing or causing a breach or termination of the relationship or
expectancy, and resultant damage to the plaintiff. To establish that a lawful act
was done with malice and without justification, the plaintiff must demonstrate,
with specificity, affirmative acts by the defendant that corroborate the improper
motive of the interference. Where the defendant's actions were motivated by
legitimate business reasons, its actions would not constitute improper motive or
interference. [BPS Clinical Laboratories v Blue Cross & Blue Shield of
Michigan, 217 Mich App 687, 698-699; 552 NW2d 919 (1996) (citations
omitted).]
We have determined that the circuit court properly granted summary disposition of
plaintiffs' claims of tortious interference with a business relationship or expectancy. The record
demonstrates that it was the Pocatello search committee that conducted an investigation of Dr.
Mino. Latture and Peacock did not instigate this investigation. Further, the evidence provided
by plaintiffs fails to demonstrate any affirmative acts done with malice and without justification.
See id. The only evidence plaintiffs point to was the testimony that Peacock said there were
unsubstantiated rumors or allegations that Dr. Mino engaged in sexual improprieties, and the
testimony that the Pocatello search committee said Latture told the committee about the "buyout,
the gag order," and sexual improprieties involving Dr. Mino. Such evidence is insufficient in
terms of demonstrating an affirmative act by Latture or Peacock done with malice or without
justification. Id. Accordingly, the circuit court properly granted summary disposition of
plaintiffs' claims for tortious interference with a business relationship or expectancy.
VI. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Plaintiffs argue that, by spreading scandalous falsehoods and rumors about Dr. Mino,
Latture, Peacock, and Emmerling engaged in conduct that was outrageous, at least reckless if not
intentional, and caused Dr. Mino to suffer emotional harm, including depression. Again, we
disagree.
In order to establish a valid claim of intentional infliction of emotional distress, a plaintiff
must show: "(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and
(4) severe emotional distress." Graham v Ford, 237 Mich App 670, 674; 604 NW2d 713 (1999).
The Graham Court further stated:
Liability . . . has been found only where the conduct complained of has
been 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
-10-
in a civilized community. . . . It is not enough that the defendant has acted with an
intent that is tortious or even criminal, . . . or even that his conduct has been
characterized by "malice," or a degree of aggravation that would entitle the
plaintiff to punitive damages for another tort. . . . The test is whether . . . an
average member of the community would . . . claim, "Outrageous!" [Id. at 674675 (citations and quotations omitted).]
The circuit court also properly granted defendants' motion for summary disposition with
regard to plaintiffs' claims for intentional infliction of emotional distress against these
defendants. The challenged conduct, which plaintiffs have failed to specify either in their
complaint or on appeal, cannot be described as extreme or outrageous. "Liability does not extend
to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Id. at
674. Accordingly, we find no error here either.
VII. LOSS OF CONSORTIUM
In Long v Chelsea Community Hosp, 219 Mich App 578, 589; 557 NW2d 157 (1996),
this Court held that "[a] derivative claim for loss of consortium stands or falls with the primary
claims in the complaint. Because plaintiff 's other claims failed, the loss of consortium claim
must likewise fail." Likewise, in the instant case, Nancy's claim for loss of consortium must also
fail in all respects.11
Affirmed.
B.B. MacKenzie, J., concurred.
/s/ Peter D. O'Connell
/s/ Barbara B. MacKenzie
11
Given our disposition of this case, it is unnecessary for us to examine plaintiffs' claim that
governmental immunity does not apply in this case.
-11-
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