KIMBERLY J KELLY V DEBRA ANN KELLY-WHEELER
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STATE OF MICHIGAN
COURT OF APPEALS
KIMBERLY J. KELLY,
UNPUBLISHED
June 24, 2004
Plaintiff-Appellant,
v
No. 246604
Shiawassee Circuit Court
LC No. 02-007900-CZ
DEBRA ANN KELLY-WHEELER,
Defendant-Appellee.
Before: Sawyer, P.J., and Gage and Owens, JJ.
PER CURIAM.
Plaintiff appeals from an order of the circuit court granting summary disposition in favor
of defendant on plaintiff’s claims of defamation and tortious interference with contract. We
affirm. This case is being decided without oral argument pursuant to MCR 7.214(E).
Plaintiff is the current wife, and defendant is the ex-wife, of Steven Kelly. The incident
which gives rise to the allegations in this case occurred while defendant and Kelly were engaged
in a custody dispute. Plaintiff alleges that she was enrolled in a medical assistant program at
Baker College and was placed in an externship at North Street Medical Center. Successful
completion of an internship is a prerequisite to graduation from the program. As it happens,
defendant is a patient at North Street Medical Center. Although there is some dispute over the
exact details of the incident, it is undisputed that, during plaintiff’s externship at North Street
Medical Center, defendant contacted the office manager there and expressed concern that
plaintiff had improperly disclosed confidential information from defendant’s medical records.
According to plaintiff, this caused her to be removed from the externship and, while another
placement was found for her, it caused a delay in her graduation from the program.
The trial court granted summary disposition pursuant to MCR 2.116(C)(10), concluding
that there was no genuine issue of material fact. Specifically, the trial court concluded that
plaintiff was unable to establish that defendant’s statements to North Street Medical Center were
untruthful and that any statement by defendant to the medical office regarding her medical
records were privileged. The trial court also concluded that plaintiff’s inability to establish the
falsity of defendant’s statements also warranted summary disposition on the tortious interference
claim.
On appeal, plaintiff first argues that the trial court erred in concluding that there was no
genuine issue of material fact regarding the falsity of defendant’s statement. We disagree. In her
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deposition, defendant admitted that she had contacted Karen Stewart at the medical office and
expressed concern regarding the confidentiality of her medical records. Specifically, defendant
told Stewart that defendant’s daughter informed her that, while at plaintiff’s and her father’s
home, she had seen defendant’s medical records containing a listing of the medicines that had
been prescribed for defendant. Defendant also testified that she contacted Baker College with
her concerns that plaintiff may have violated her medical privacy.
Karen Stewart, the office manager for North Street Medical Center, testified in her
deposition that, during plaintiff’s externship at the medical office, defendant contacted Stewart
and expressed concern that plaintiff may have seen defendant’s medical records because her
daughter had given her some information that was in defendant’s medical chart. Defendant
further told Stewart that there was litigation going on between herself and her ex-husband.
Stewart contacted Baker College and indicated that they could not have a situation where there
even was a concern regarding confidentiality. According to Stewart, the person she spoke with
at Baker College indicated that they would not have placed plaintiff at the medical office had
they been aware of the situation. Stewart specifically testified that defendant never stated as a
fact that plaintiff had seen her medical records, but only that she was concerned that plaintiff had
seen the records based upon the information provided by defendant’s daughter.
In order for a statement to be actionable as defamation, it must be provable as false.
Mino v Clio School Dist, 255 Mich App 60, 77; 661 NW2d 586 (2003). Here, plaintiff points to
no evidence that defendant made a false statement. The only allegedly false statement made by
defendant set out in plaintiff’s complaint is the allegation that defendant falsely complained to
Karen Stewart that plaintiff had stolen defendant’s medical records. Plaintiff points to no
evidence that defendant did, in fact, make such a false statement. Defendant admits to talking to
Karen Stewart regarding this issue, essentially making two statements: (1) that her daughter told
her that she had seen a paper at her father’s and plaintiff’s house with defendant’s name on it and
listing the medications that defendant was on and (2) that defendant was concerned that plaintiff
may have improperly viewed defendant’s medical records.
With respect to the first statement, that defendant’s daughter (plaintiff’s stepdaughter)
told defendant she had seen the paper, plaintiff points to no evidence to show that the daughter
did not, in fact, make such a statement to defendant. At best, plaintiff can produce evidence (her
own testimony) that the daughter could not have seen such a document because no such
document was present in the home. But that would not establish that the daughter did not make
the statement. It would only establish that, if the daughter did make the statement, she did so
without a factual basis for doing so. And if the daughter made the statement, then defendant
telling Stewart that the daughter made the statement is not a false statement by defendant and,
therefore, not actionable.
Turning to the second statement, defendant expressed her concern that plaintiff had seen
her medical records during her externship at the medical office. Both defendant and Stewart in
their depositions described this statement as defendant expressing concern that plaintiff may
have seen defendant’s medical records, not a statement of fact that she had. In other words, if
defendant’s daughter did tell her that she had seen defendant’s medical information on a sheet of
paper at plaintiff’s house, defendant likely was concerned that her medical privacy had been
breeched by plaintiff, who was at that time working in the medical office. And if so, the second
statement to Stewart is not demonstrably false.
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In short, at most plaintiff can demonstrate a motive for defendant’s fabricating of a story
to seek revenge against plaintiff. Plaintiff, however, cannot point to any evidence that defendant
did, in fact, fabricate the story. Thus, unless plaintiff can demonstrate that defendant’s daughter
never made the statement to defendant regarding seeing the sheet of paper with defendant’s
medical information on it, plaintiff cannot demonstrate the falsity of defendant’s statement to
Stewart. And plaintiff can make no such showing with the available evidence.
A decision on a motion for summary disposition under MCR 2.116(C)(10) is reviewed de
novo. Mino, supra at 67. All of the available evidence, including affidavits, depositions, and
pleadings are reviewed in the light most favorable to the nonmoving party. Id. at 67-68.
Summary disposition is proper if the documentary evidence fails to establish a genuine issue of
material fact. Id. at 68. In the case at bar, plaintiff is unable to show the existence of evidence to
support the conclusion that defendant’s statement to Stewart was false (or her statements to
anyone else, for that matter). Therefore, she did not establish the existence of a genuine issue of
material fact and summary disposition in favor of defendant was appropriate on the defamation
claim.
Next, plaintiff challenges the grant of summary disposition on the tortious interference
with contract claim. To establish tortious interference with a contract, three elements must be
shown: (1) a contract, (2) a breach, and (3) an unjustified instigation of the breach by the
defendant. Mahrle v Danke, 216 Mich App 343, 350; 549 NW2d 56 (1996). We agree with the
trial court that plaintiff’s inability to establish the falsity of defendant’s statement to Stewart also
prevents her from establishing a tortious interference with a contract. That is, defendant engaged
in an unjustified instigation of the breach of contract only if she knowingly made a false
statement to Stewart regarding her concern that her medical privacy was violated. That is, if
defendant’s daughter did make the statement that she had seen defendant’s medical records at
plaintiff’s house, then defendant was justified in contacting Stewart and expressing her concern
that her privacy had been violated. Defendant’s actions in contacting Stewart and expressing her
concern would be unjustified only if defendant had no basis for believing that her daughter had,
in fact, seen any medical records at plaintiff’s house. Because plaintiff can make no such factual
showing, she has not established a genuine issue of material fact regarding whether defendant
unjustifiably instigated the breach.
Plaintiff next argues that the trial court erred in concluding that plaintiff had failed to
provide substantiation for her claim because the trial court was “instrumental in precluding
opportunities for the plaintiff to gain substantiation.” Plaintiff fails, however, to demonstrate a
factual basis for this statement. She claims that she attempted to obtain multiple unspecified
depositions from individuals at Baker College, a continued deposition of defendant, and a
transcript of Stewart’s testimony at a referee hearing, as well as defendant’s attorney’s comments
at that hearing. Plaintiff does not establish that she actually served subpoenas on those
individuals to obtain those depositions, much less that the trial court refused to enforce the
subpoenas and compel the submission to those depositions. With respect to the transcript of the
referee hearing, plaintiff does not show that the transcript would have been admissible evidence
or that she could not have obtained the same evidence by deposition.
Finally, plaintiff argues that the trial court erred in categorizing defendant’s statements as
an opinion. We need not address this issue because, even if defendant’s statements are
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categorized as statements of fact and not opinion, as analyzed above we conclude that plaintiff
cannot establish the falsity of those statements.
Affirmed. Defendant may tax costs.
/s/ David H. Sawyer
/s/ Hilda R. Gage
/s/ Donald S. Owens
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