Dossett v. First State Bank, Loomis

Citation627 N.W.2d 131,261 Neb. 959
Decision Date08 June 2001
Docket NumberNo. S-00-245.,S-00-245.
PartiesBetty Lou DOSSETT, Appellant, v. FIRST STATE BANK, LOOMIS, NEBRASKA, Appellee.
CourtSupreme Court of Nebraska

William A. Tringe, Jr., Holdrege, for appellant.

Roger L. Shiffermiller, of Fraser, Stryker, Meusey, Olson, Boyer & Bloch, P.C., Omaha, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, Justice.

I. NATURE OF CASE

Betty Lou Dossett appeals from the order of the district court for Phelps County overruling her motion for summary judgment; granting the motion for summary judgment filed by First State Bank, Loomis, Nebraska (the bank); and dismissing her petition with prejudice. We reverse, and remand for further proceedings.

II. STATEMENT OF FACTS

In her petition, Dossett has alleged the following facts: Dossett began working for the bank in February 1994 as a teller and bookkeeper. On January 15, 1998, on her own time and not during her working hours at the bank, Dossett attended an open meeting of the Phelps County "R-6" school board. During the meeting, Dossett spoke publicly against a proposed school district merger between the R-6 school and the Loomis Public Schools.

On January 29, 1998, 2 weeks after the school board meeting, the bank terminated Dossett's employment. On February 10, the bank sent Dossett a letter signed by the bank president, John R. Nelsen, explaining the basis for her termination. The letter stated that Dossett's employment was terminated "as a result of comments made by [Dossett] during a meeting on January 15, 1998, which were negative about [the] local school board and superintendent, thereby reflecting poorly on [the] community and placing at risk substantial customers of the Bank."

On July 28, 1998, Dossett filed suit against the bank in the district court for Phelps County. Her amended petition was filed on September 18 and purports to state two causes of action. In her petition, Dossett alleged that the bank's termination of her employment was a result of her exercise of her state constitutional right to free speech, as set forth in Neb. Const. art. I, § 5, and that such discharge violated state "public policy." Neb. Const. art. I, § 5, provides that "[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth when published with good motives, and for justifiable ends, shall be a sufficient defense." Dossett did not identify in her petition what state public policy she claimed had been violated by her termination. In her petition, Dossett further alleged that as a result of her wrongful termination, she was entitled to damages pursuant to Neb.Rev. Stat. § 20-148 (Reissue 1997). Section 20-148 provides, inter alia, as follows:

(1) Any person or company ... except any political subdivision, who subjects or causes to be subjected any citizen of this state or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the United States Constitution or the Constitution and laws of the State of Nebraska, shall be liable to such injured person in a civil action or other proper proceeding for redress brought by such injured person.

On November 6, 1998, the bank filed a demurrer to Dossett's petition on the ground that the petition failed to state facts sufficient to constitute a cause of action. In an order entered January 27, 1999, the district court sustained the bank's demurrer as to Dossett's allegations relating to an alleged violation of public policy, with an indication that such "defect" could not be cured. The district court overruled the demurrer as to the allegations brought under § 20-148.

On March 5, 1999, the bank filed its answer to Dossett's petition. In its answer, the bank pled, as an affirmative defense, the allegation that Dossett's petition failed to state facts sufficient to constitute a cause of action.

On January 6, 2000, the bank filed a motion for summary judgment. On January 7, Dossett filed a cross-motion for summary judgment. The cross-motions for summary judgment came on for hearing on January 12. Nelsen's and Dossett's depositions were offered and received into evidence without objection. No other evidence was offered at the hearing.

In her deposition testimony, Dossett essentially recounted the facts recited above. Nelsen testified that the Loomis Public Schools was the bank's biggest depositor and that following Dossett's remarks concerning the proposed school district merger, he met with both the superintendent and a board member of the Loomis Public Schools and that he thereafter concluded that these persons did not want to do business with the bank if Dossett was working there.

In an order filed January 21, 2000, the district court overruled Dossett's motion for summary judgment and granted the bank's motion for summary judgment. The district court ruled that § 20-148 was a procedural statute only and did not provide Dossett with any substantive rights. The district court noted that Dossett's claim for wrongful termination brought under § 20-148 was based on an alleged violation of Neb. Const. art. I, § 5, and that this constitutional provision required proof of state action. The court concluded that because Dossett had not alleged the requisite state action, the allegations in her petition "must fail." Accordingly, the district court granted the bank's motion for summary judgment and dismissed Dossett's petition. Dossett appealed.

III. ASSIGNMENTS OF ERROR

On appeal, Dossett claims that the district court erred in granting the bank's motion for summary judgment and dismissing her petition. Dossett also argues, inter alia, that the district court erred in granting the bank's demurrer as to the allegations relating to her claim of a violation of public policy and in considering the legislative history of § 20-148 in connection with its ruling on the cross-motions for summary judgment.

IV. STANDARDS OF REVIEW

The inquiry into whether a terminated employee's speech is protected under Neb. Const. art. I, § 5, is a question of law. See, Cox v. Civil Serv. Comm. of Douglas Cty., 259 Neb. 1013, 614 N.W.2d 273 (2000); Millennium Solutions v. Davis, 258 Neb. 293, 603 N.W.2d 406 (1999). When an appeal presents questions of law, an appellate court must reach an independent, correct conclusion irrespective of the determination made by the court below. Sharkey v. Board of Regents, 260 Neb. 166, 615 N.W.2d 889 (2000).

Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Morrison Enters. v. Aetna Cas. & Surety Co., 260 Neb. 634, 619 N.W.2d 432 (2000).

Although the denial of a motion for summary judgment, standing alone, is not a final, appealable order, when adverse parties have each moved for summary judgment and the trial court has sustained one of the motions, the reviewing court obtains jurisdiction over all motions and may determine the controversy which is the subject of those motions or make an order specifying the facts which appear without substantial controversy and direct further proceedings as it deems just. Shivvers v. American Family Ins. Co., 256 Neb. 159, 589 N.W.2d 129 (1999).

When it appears in a motion for summary judgment that an opposing party has failed to state a cause of action, then the motion may be treated, as to that issue, as one for judgment on the pleadings. Rodriguez v. Nielsen, 259 Neb. 264, 609 N.W.2d 368 (2000); Hoch v. Prokop, 244 Neb. 443, 507 N.W.2d 626 (1993).

V. ANALYSIS
1. TERMINATION AS VIOLATIVE OF PUBLIC POLICY

On appeal, Dossett claims that the district court erred in sustaining the bank's demurrer regarding the adequacy of the allegations in her petition pertaining to an alleged violation of public policy. Dossett alleged that the termination of her employment resulted from the exercise of free speech and that her termination violated "public policy." For the first time, on appeal, she argues in her brief that the termination of her employment violates the public policy embodied in Nebraska's public meetings law, Neb.Rev.Stat. § 84-1408 (Reissue 1999). It is well settled that the purpose of the public meetings law is to ensure that public policy is formulated at open meetings. See Marks v. Judicial Nominating Comm., 236 Neb. 429, 461 N.W.2d 551 (1990). Dossett did not identify this public policy in her petition, nor did she raise an issue regarding the formulation of public policy at open meetings in argument before the district court.

This court has previously indicated that an appellate court will not consider an issue on appeal that was not passed upon by the trial court. Prucha v. Kahlandt, 260 Neb. 366, 618 N.W.2d 399 (2000); Torres v. Aulick Leasing, 258 Neb. 859, 606 N.W.2d 98 (2000). Accordingly, we do not consider this argument further on appeal.

2. GRANT OF BANK'S MOTION FOR SUMMARY JUDGMENT

Dossett claims that the district court erred in granting the bank's motion for summary judgment and dismissing her petition with prejudice. For reasons different than those asserted by Dossett, we agree with Dossett that the district court erred in granting the bank's motion for summary judgment and in dismissing the petition. Accordingly, we reverse, and remand for further proceedings.

(a) Bank's Motion for Summary Judgment Treated as Motion for Judgment on Pleadings

Prior to ruling on the propriety of the district court's dismissal of Dossett's petition, we set forth the relevant procedural history of this case. In its answer to Dossett's petition, the bank alleged, as an affirmative defense, that Dossett's petition failed to state...

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