Zimmerman v. Owens

Griffin, J.

Plaintiff appeals as of right an order of the circuit court granting summary disposition for defendant pursuant to MCR 2.116(C)(8). We affirm.

Defendant is an attorney who represents Robyn Zimmerman in a divorce action in the Kent Circuit Court, Zimmerman v Zimmerman, Case No. 91-73660-DM. Although Robyn Zimmerman and Edward Zimmerman were divorced in 1992, issues of child custody and visitation are ongoing. Plaintiff Susan Zimmerman is the present wife of Edward Zimmerman.

On August 10, 1993, defendant filed a motion in Zimmerman v Zimmerman requesting that Edward Zimmerman’s visitation of the Zimmerman children be restricted when the children are in the presence of their stepmother, plaintiff Susan Zimmerman. In support, defendant attached to his motion a copy of a Department of Social Services protective services report detailing alleged child abuse committed by plaintiff against her own children. On August 24, 1993, Kent Circuit Court Judge Dennis B. Leiber ordered the clerk to seal the protective services report, “which report shall not be opened except upon order of this Court.”

Plaintiff brought this action pursuant to subsection 13(3) of the Child Protection Law, MCL 722.633(3); MSA 25.248(13)(3), seeking damages for defendant’s alleged wrongful dissemination of the protective services report. Plaintiff’s sole allegation pertaining to defendant’s “dissemination” of the report is contained in paragraph sixteen of her complaint:

By placing said Report in the court file, defendant in effect disseminated the Report to the whole world. [Emphasis added.]

Plaintiff’s complaint does not allege that any unauthorized person ever saw the protective services report during the fourteen days that it was not under seal. In addition, plaintiff’s appellate brief contains the following admission:

Plaintiff’s complaint did not allege that defendant had disseminated the confidential Protective Services Report other than by attaching it to a public court pleading.

Defendant moved for summary disposition on the ground that plaintiffs complaint failed to state a claim on which relief can be granted. Defendant’s motion was granted by Judge Leiber, who was assigned the present case as well as Zimmerman v Zimmerman. Although the court’s order specifies that the motion was granted pursuant to MCR 2.116(C)(8), the basis for the lower court’s decision was that defendant was engaged in a “privileged act” when he attached the protective services report to his motion.¹

Subsection 13(3) provides:

Except as provided in section 7, a person who disseminates, or who permits or encourages the dissemination of, information contained in the central registry and in reports and records made pursuant to this act is guilty of a misdemeanor and is civilly liable for the damages proximately caused by the dissemination. [MCL 722.633(3); MSA 25.248(13)(3) (emphasis added).]

Subsection 7(l)(g) of the act stated at the time the defendant submitted the report that the confidentiality requirement is not applicable to various entities including the parties and “[a] court which determines the information is necessary to decide an issue before the court.” MCL 722.627(l)(g); MSA 25.248(7)(l)(g).

In Warner v Mitts, 211 Mich App 557; 536 NW2d 564 (1995), this Court held that pursuant to the exception contained in subsection 7(1)(g), a court may order the production of a previously prepared protective services report if the court determines that the information contained in the report is necessary and relevant for the determination of issues raised in the action. In accordance with Warner, we conclude that the lower court had authority to order the production of the protective services report. Further, we note that the lower court assumed that the protective services report was relevant and necessary to the issues of custody and visitation raised in Zimmerman v Zimmerman.

A person who violates the confidentiality mandate of the Child Protection Law may be responsible for civil liability if the plaintiff proves (1) damages, (2) proximately caused, (3) by the dissemination of the information. In the present case, plaintiff fails to allege that the information contained in the protective services report was disseminated to unauthorized persons. The most that plaintiffs complaint alleges is that defendant “in effect disseminated the report” by placing the report in a court file.

The terms “disseminates” or “dissemination” are not defined in the Child Protection Law, MCL 722.621 et seq.; MSA 25.248(1) et seq. Accordingly, we look to dictionary definitions and accepted legal definitions for guidance. People v Lee, 447 Mich 552, 558; 526 NW2d 882 (1994).

The Random House College Dictionary (rev ed), p 384, defines “disseminate” as “to scatter or spread widely; promulgate extensively.” See also People v Witzerman, 29 Cal App 3d 169, 179; 105 Cal Rptr 284 (1972).

Further, 3 Restatement Torts, § 581, p 209, defines “disseminates” as follows:

The word “disseminates,” as used in this Section means the circulation of the physical embodiment of the defamatory matter. It includes the selling, renting, giving, or otherwise circulating a book, paper or document composed or written or printed by a third person. It includes similar dealing with a picture or statue or phonograph record. It also includes the carrying of a letter or the transmission of messages by other means, such as by telegraph or radio.

We agree with these definitions and hereby adopt them as our own for the purposes of the Child Protection Law.

Applying these definitions to plaintiffs complaint, we conclude that plaintiff has failed to allege the dissemination element required to maintain her action. The confidential protective services report was not promulgated extensively, if at all, to unauthorized third persons by its temporary placement in the public court file. To the contrary, plaintiff claims no widespread circulation and no dissemination other than the “in effect” act of placing the report in a court file. Under these circumstances, we hold that plaintiffs complaint fails to allege dissemination and, therefore, a claim on which relief can be granted has not been pleaded. The lower court properly granted defendant’s motion for summary disposition pursuant to MCR 2.116(C)(8).

In view of our disposition, we express no opinion regarding the issue whether attaching the report to a court motion was a privileged act. Even if we were to agree with plaintiff that there is no common-law privilege regarding defendant’s conduct, we will not reverse when the court reaches the correct result but for the wrong reason. People v Lucas, 188 Mich App 554, 577; 470 NW2d 460 (1991), and People v Beckley, 161 Mich App 120, 131; 409 NW2d 759 (1987), aff’d 434 Mich 691; 456 NW2d 391 (1990).

Affirmed.

M. G. Harrison, J., concurred.

1 Immunities granted by law appear to be covered by MCR 2.116(C)(7), not MCR 2.116(C)(8).