Prokop v. Cannon
| Decision Date | 14 July 1998 |
| Docket Number | No. A-97-615,A-97-615 |
| Parties | Robert J. PROKOP, M.D., Appellant, v. Martin A. CANNON, Sr., et al., Appellees. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Demurrer: Pleadings. In considering a demurrer, a court must assume that the facts pled, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of facts not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.
2. Actions: Pleadings. In determining whether a cause of action has been stated, a petition is to be liberally construed.
3. Constitutional Law: Libel and Slander. When an allegedly defamatory speech involves a public figure and the speech is a matter of public concern, then the plaintiff must surmount higher barriers than those present in simple common-law libel because of the First Amendment.
4. Libel and Slander: Words and Phrases. Malice in a public-figure libel case means knowledge of falsity or reckless disregard for the truth.
5. Libel and Slander: Proof. The burden of proof for falsity in a public-libel case is by clear and convincing evidence.
6. Libel and Slander: Pleadings. Libelous matter in a pleading which is relevant to, or has some reasonable relation to, the judicial proceeding in which it is filed is absolutely privileged.
7. Libel and Slander: Attorneys at Law. Absolute privilege attaches to all statements, even allegedly defamatory statements, made by an attorney incident to and in the course of a judicial proceeding, if the statements have some relation to the proceedings.
8. Libel and Slander: Attorneys at Law. An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he or she participates as counsel, if it has some relation to the proceeding.
9. Libel and Slander: Attorneys at Law. Releases made to the news media by defendants and cocounsels are privileged as communications made as part of a judicial proceeding.
10. Demurrer: Pleadings. After a demurrer is sustained, leave to amend is to be given, unless it is clear that no reasonable possibility exists that the plaintiff will be able to correct the deficiency.
11. Actions: Proof. In a malicious prosecution case, the necessary elements for the plaintiff to establish are: (1) the commencement or prosecution of the proceeding against him or her; (2) its legal causation by the present defendant; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damages.
12. Actions. An action for malicious prosecution can be brought when the underlying action is a civil action.
13. Actions: Probable Cause. The absence of probable cause is an essential and indispensable element of an action for the malicious prosecution of a civil or criminal action.
14. Actions: Attorneys at Law: Liability. Generally, an attorney is not liable in an action for malicious prosecution where he or she has acted in good faith in the prosecution of the client's rights; however, such a suit can be brought against an attorney because an attorney cannot always justify his or her actions merely by showing he or she followed the client's instructions.
15. Actions: Attorneys at Law. If an attorney, knowing that there is no cause of action, dishonestly and for some improper purpose files suit, or if an attorney acts knowing that the client has no just claim and that the client is actuated by an illegal or malicious motive, then a cause of action for malicious prosecution exists against the attorney.
16. Actions: Attorneys at Law. A cause of action exists if an attorney prosecutes a claim which a reasonable lawyer would not regard as tenable or proceeds with the action by unreasonably neglecting to investigate the facts and the law.
17. Attorney and Client: Liability. Attorneys may be liable in exceptional circumstances for their actions in connection with the representation of a client.
18. Actions: Attorney Fees. A court shall assess attorney fees and costs if, upon the motion of any party or the court itself, the court finds that an attorney or party brought or defended an action or any part of an action that was frivolous.
19. Actions: Words and Phrases. "Frivolous" has been defined as a legal position wholly without merit, that is, without a rational argument based on law and evidence to support the litigant's position in the lawsuit.
20. Actions: Words and Phrases. The term "frivolous" connotes an improper motive or a legal position so wholly without merit as to be ridiculous.
21. Actions. Any doubt about whether a legal position is frivolous or taken in bad faith must be resolved in favor of the party whose legal position is in question.
22. Actions: Attorneys at Law. Attorneys and litigants should not be inhibited in pressing novel issues or in urging a position which can be supported by a good faith argument for an extension, modification, or reversal of existing law.
23. Effectiveness of Counsel. A pro se litigant is held to the same standards as one who is represented by counsel.
Robert J. Prokop, pro se.
Michael M. O'Brien, P.C., Omaha, for appellees.
Robert J. Prokop, M.D., appeals the dismissal of his third amended petition with prejudice after the district court for Saline County, Nebraska, sustained the defendants' demurrer.
A number of years ago, Nancy Hoch and Prokop were opposing candidates for the elected position of University of Nebraska regent in the 1988 general election. During the campaign, Prokop authored a flier criticizing Hoch's record and mailed it to approximately 40,000 households. Hoch requested a retraction, which was not forthcoming. Hoch then filed suit in the district court for Saline County, alleging that the flier contained 13 separate instances of libel. Hoch was represented at different phases of the lawsuit by Martin A. Cannon, Sr., and Michael M. O'Brien of Cannon, Goodman, O'Brien & Grant, P.C.--all of whom are the defendants in the instant action. For convenience, we will refer to them collectively as "Hoch's attorneys." Prokop's answer asserted that the petition failed to state a cause of action. But rather than demurring on this basis, Prokop filed a motion for summary judgment. The district court granted summary judgment to Prokop as to 12 of the 13 allegations. As to the 13th allegation of libel, the district court ordered that the case proceed to trial. Hoch withdrew the 13th allegation and appealed the entry of summary judgment to the Nebraska Supreme Court.
In Hoch v. Prokop, 244 Neb. 443, 449, 507 N.W.2d 626, 631 (1993), the Nebraska Supreme Court held that the district court committed plain error by "not treating the summary judgment as a demurrer, by not ruling that Hoch had failed to state a cause of action, and by not allowing Hoch to amend her petition." The judgment of the district court was reversed, and the cause was remanded with directions. After approximately 7 years of pretrial motions and amended petitions, on October 10, 1995, 2 days before the scheduled trial, Hoch dismissed the suit against Prokop with prejudice. That day, the Omaha World-Herald ran a story about the lawsuit in which one of Hoch's attorneys, O'Brien, was quoted as saying that his client had dropped the suit because she had been able to stop Prokop's libelous remarks. The article went on to quote counsel as having said: " "
Prokop sued Hoch's attorneys on October 10, 1996, in the district court for Saline County. The petition was prepared pro se and alleged that Hoch's previous lawsuit against Prokop contained slander and libel. Prokop further alleged that Hoch's attorneys "maliciously and with knowledge of the falsity of their allegations [by their client] represented in Hoch vs. Prokop, and with a reckless disregard for the truth, continued litigation for the purpose of malicious prosecution of the Plaintiff, Robert J. Prokop, M.D." Prokop requested $5 million in "specific damages" for malicious prosecution and slander and libel and also asked for general damages as provided by law. Hoch's attorneys demurred, asserting that several causes of action were improperly joined and that the petition failed to state facts sufficient to constitute a cause of action.
On November 27, 1996, Prokop filed a motion for summary judgment, which stated: "This Motion is based upon Defendant's Answer which fails to deny any of the Plaintiff's allegations." While this statement is technically correct because Hoch's attorneys did not file an answer, it is of no consequence because they demurred to the petition. The trial court sustained the demurrer on December 12, 1996, and gave Prokop leave to amend his petition. That same day, Prokop filed his amended petition, which was identical to the original petition. Hoch's attorneys Section 25-804, R.R.S.1995, requires that a petition contain "a statement of facts constituting the cause of action, in ordinary and concise language, and without repetition..." The pleadings also show that Plaintiff is a medical doctor and this court assumes that he has the resources to obtain skilled help and advice. It is time for an appellate court to consider these pleadings because Plaintiff, on his own, will be unable to satisfy the trial court. The court does not want to risk a reversal on summary judgment because a defective demmurrer [sic]...
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