Elbert v. Young

• Decision Date: 29 July 2022
• Docket Number: S-21-211.
• Citation: 312 Neb. 58,977 N.W.2d 892
• Parties: Mark D. ELBERT, appellant, v. Gary YOUNG and Keating, O'Gara, Nedved & Peters, P.C., L.L.O., appellees.
• Court: Nebraska Supreme Court

312 Neb. 58

977 N.W.2d 892

Mark D. ELBERT, appellant,

v.Gary YOUNG and Keating, O'Gara, Nedved & Peters, P.C., L.L.O., appellees.

No. S-21-211.

Supreme Court of Nebraska.

Filed July 29, 2022

Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for appellant.

Nathan D. Clark and Andre R. Barry, Lincoln, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellees.

Miller-Lerman, Cassel, Stacy, Funke, and Freudenberg, JJ., and Coffey, District Judge.

Funke, J.

INTRODUCTION

Mark D. Elbert, former chief of police for Bellevue, Nebraska, appeals the order of the district court for Sarpy County granting summary judgment to Gary Young and Keating, O'Gara, Nedved & Peter, P.C., L.L.O. (collectively KONP), a law firm that represents the Bellevue Police Officers Association (BPOA) and several BPOA members. The court found that Elbert's defamation claim was not supported by evidence of actual malice or special damages and certain statements attributed to KONP were absolutely privileged. The court also found that Elbert's false light claim was subsumed in his defamation claim and that his civil conspiracy claim failed for lack of an underlying tort. Elbert appeals. We affirm.

BACKGROUND

At a meeting on September 13, 2017, BPOA members discussed Elbert's conduct and, by a vote of 72 to 1, expressed " ‘no confidence’ " in him as the chief of police. After the meeting, the BPOA issued a press release drafted by KONP, asserting there was "substantial evidence" Elbert had engaged in "dishonest and deceptive conduct" in carrying out his duties. The press release also claimed that Elbert had initiated multiple internal investigations of union leaders in retaliation for union activity and made "derogatory comments towards women and racial minorities."

KONP subsequently completed an "Allegation/Inquiry/ Commendation" (AIC) form, which discussed the allegations in the press release, as well as other alleged dishonesty by Elbert, and filed it with Bellevue. KONP also assisted in drafting two informal complaints that individual Bellevue Police Department officers filed with the Nebraska Commission on Law Enforcement and Criminal Justice (Crime Commission). The substance of both complaints was that Elbert had instructed employees to lie and conceal information.

Elbert filed suit against KONP in September 2018, alleging he was defamed and placed in a false light by the press release, AIC allegations, and Crime Commission complaints. Elbert also alleged KONP engaged in a civil conspiracy to place him in a false light, "harm him in his professional career, and interfere with his [prospective] employment as US Marshall and the ability to continue as a Nebraska Chief of Police."

The parties conducted discovery, during which Elbert responded to interrogatories regarding his defamation and false light claims. Specifically, he responded to an interrogatory asking which statements by KONP were not defamatory, but placed him in a false light, by stating: "See Answer to Interrogatory Number 4. If these statements were not actually defamatory, at a minimum, they portrayed [Elbert] in a false light because of [KONP's] mischaracterization of the context and the subject [of the] communication." Interrogatory No. 4 asked Elbert which of KONP's statements were either false or portrayed him in a false light. Elbert responded that the press release, AIC allegations, and Crime Commission complaints were the statements he claimed were false or portrayed him in a false light.

There were also depositions wherein counsel for Elbert inquired about certain communications KONP had with BPOA members. Counsel for KONP objected on attorney-client privilege grounds. Elbert's counsel mentioned moving to compel the production of these communications when concluding the depositions of two KONP attorneys, but no motion was filed.

KONP moved for summary judgment on the grounds that as to Elbert's defamation claim, there was no evidence of actual malice or special damages and certain statements attributed to it were absolutely privileged. KONP also asserted that Elbert's false light claim was subsumed in his defamation claim and that his civil conspiracy claim failed for lack of an underlying tort.

The district court held a hearing on KONP's motion for summary judgment, during which Elbert's counsel objected to the admission into evidence of paragraphs 11, 12, and 13 of the affidavit of KONP attorney Gary Young on foundation grounds, paragraph 21 on hearsay and foundation grounds, and "references to alleged statements of clients" on the grounds that KONP had asserted attorney-client privilege as to its communications with BPOA members during discovery. Similar objections were made to the affidavit of KONP attorney Thomas McCarty. The affidavits described, in general terms, the sources of the attorneys’ information about Elbert and their belief that the information was true.

At the hearing, Elbert also argued in opposition to KONP's motion for summary judgment, asserting that KONP's statements were made in retaliation for Bellevue's refusal to drop an investigation of a BPOA official. Elbert further argued that the case did not "fit[ ] within the context" of New York Times Company v. Sullivan , 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), because KONP was not a "member of the media or the press," Elbert was not a public figure, and the dispute did not involve matters of "public discourse."

The district court overruled Elbert's objections to the affidavits of Young and McCarty and adopted KONP's arguments as to why Elbert's defamation, false light, and civil conspiracy claims fail on summary judgment.

Elbert appealed to the Nebraska Court of Appeals, and we moved the matter to our docket.

ASSIGNMENTS OF ERROR

Elbert assigns, summarized and reordered, that the district court erred in overruling his objections to the testimony of the two KONP attorneys and in finding that certain statements attributed to KONP were absolutely privileged, that his false light claim was subsumed, and that his claim for civil conspiracy failed.

STANDARD OF REVIEW

A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.¹ Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and reviews de novo the court's ultimate determination to admit evidence over a hearsay objection or exclude evidence on hearsay grounds.²

An appellate court affirms a lower court's grant of sumary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.³ In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence.⁴

Whether a communication is privileged by reason of its character or the occasion on which it was made is a question of law, which an appellate court resolves independently of the determination reached by the court below.⁵

ANALYSIS

ADMISSION OF TESTIMONY

On appeal, Elbert argues that the district court erred in admitting into evidence the affidavits of Young and McCarty over his hearsay objections. Elbert asserts that the affidavits improperly presented BPOA members’ opinions about whether Elbert's conduct was discriminatory or retaliatory, and he maintains that KONP should instead have offered affidavits from BPOA members or identified "who said it, when, in what context, etc."⁶ Elbert also argues, in the alternative, that the district court erred in not excluding the challenged affidavits on foundational grounds or because KONP sought to rely on the statements of its clients after invoking attorney-client privilege as to its communications with BPOA members during discovery.

As an initial matter, we note that Elbert did not object to paragraphs 11, 12, and 13 of Young's affidavit on hearsay grounds at the hearing before the trial court. Rather, he objected to these paragraphs solely on foundational grounds. Since a party on appeal may not assert a different ground for an objection to the admission of evidence than was offered to the trial court, our review of these paragraphs is limited to determining whether proper foundation was laid.⁷

Elbert asserts that the district court erred in not excluding these paragraphs, along with paragraph 21 of Young's affidavit and McCarty's affidavit, on foundational grounds, because they contain "supposed opinions about whether someone was telling the truth or was believable or was reasonable in their characterizations."⁸ We disagree.

An objection based upon insufficient foundation is a general objection.⁹ If such an objection is overruled, the objecting party may not complain on appeal unless (1) the ground for exclusion was obvious without stating it or (2) the evidence was not admissible for any purpose.¹⁰ Elbert has not suggested that the ground for exclusion of the affidavits was obvious. Nor has he argued that the affidavits were not admissible for any purpose. As such, the district court did not abuse its discretion in admitting the affidavits over Elbert's foundation objections.

Insofar as Elbert maintains that the challenged affidavits improperly seek to prove the truth of BPOA members’ beliefs about whether his conduct was discriminatory or retaliatory, his objection on foundational grounds appears to be tied to, and shade into, his objection on hearsay grounds. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.¹¹ Hearsay is not...