Prokop v. Hoch, S-97-1104.
| Decision Date | 17 March 2000 |
| Docket Number | No. S-97-1104.,S-97-1104. |
| Citation | 258 Neb. 1009,607 N.W.2d 535 |
| Parties | Robert J. PROKOP, M.D., appellant, v. Nancy HOCH et al., appellees. |
| Court | Nebraska Supreme Court |
Robert J. Prokop, M.D., pro se.
Richard H. Hoch, of Hoch, Funke & Kelch, Nebraska City, for appellees.
Unlike fine wine, most lengthy and acrimonious lawsuits do not age well. This dispute between Robert J. Prokop, M.D., and Nancy Hoch is no exception. Prokop seeks recovery from Hoch, Richard Hoch, and the law firm of Hoch & Steinheider (hereinafter collectively the appellees) for libel or slander, malicious prosecution, and for filing a frivolous pleading. The appellees demurred to Prokop's fourth amended petition on the bases that any causes of action arising from a previous lawsuit filed by Hoch against Prokop were barred by the statute of limitations and that the remainder of Prokop's petition failed to state a cause of action. Agreeing with the appellees, the district court sustained their demurrers, dismissed the action, and denied Prokop further opportunity to amend his petition. Prokop appealed. For the reasons stated herein, we conclude that the district court properly dismissed Prokop's action and denied him leave to amend his petition.
Hoch and Prokop opposed each other politically in 1988 as candidates for the elected position of University of Nebraska regent. During the campaign, Prokop authored a campaign flier criticizing Hoch's political record and mailed it to approximately 40,000 households. See Hoch v. Prokop, 244 Neb. 443, 507 N.W.2d 626 (1993). Hoch demanded a retraction, insisting that Prokop's flier was libelous. After the demand was refused, Hoch filed a libel lawsuit against Prokop on November 1, 1988 (the November 1988 lawsuit). After voluntarily dismissing that action, Hoch refiled it on December 5 (the December 1988 lawsuit). Exhibits attached to Prokop's petition in the instant case show that both lawsuits drew moderate media attention.
After Prokop's motion for summary judgment was granted by the district court in the December 1988 lawsuit, Hoch appealed to this court. We explained in Hoch v. Prokop that Prokop's motion for summary judgment should have been treated as a motion for judgment on the pleadings since it asserted that Hoch had failed to state a cause of action, and we concluded that the district court committed plain error insofar as it failed to (1) treat Prokop's summary judgment motion as a demurrer, (2) find that Hoch failed to state a cause of action, and (3) grant Hoch leave to amend her petition. The case was then remanded for further proceedings. On remand, Hoch's motion to dismiss the lawsuit with prejudice was granted by the trial court on October 12, 1995.
On October 10, 1996, Prokop filed the instant action in the district court for Saline County, alleging a cause of action for malicious prosecution. Notwithstanding several attempts by the district court to advise Prokop on how he might cure the defects in the petition, Prokop filed his fourth amended petition pro se, which petition is the operative petition in the instant case. Prokop seeks recovery for libel or slander, malicious prosecution, and filing frivolous pleadings. Hoch filed a motion for partial summary judgment alleging that all of Prokop's claims arising from the November 1988 lawsuit were barred by the statute of limitations. Hoch's motion was treated as a demurrer by the district court. Each of the appellees also demurred to Prokop's petition on the grounds that it failed to state a cause of action.
The district court sustained the appellees' demurrers, finding that the statute of limitations had expired with respect to certain causes of action and that the remainder of Prokop's petition failed to state a cause of action and failed to separate respective causes of action against any of the appellees. The district court thereafter determined that further amendments to the petition could not lead to a different result and dismissed the case, denying Prokop further opportunity to amend his petition. Prokop timely appealed to the Nebraska Court of Appeals, and we moved the case to our own docket pursuant to our authority to regulate the caseloads of the appellate courts of this state.
Prokop alleges, restated and summarized, that the district court erred in (1) finding some of Prokop's causes of action barred by the applicable statute of limitations, (2) finding that the balance of Prokop's petition failed to state a cause of action, and (3) dismissing Prokop's petition without granting leave to amend.
In reviewing an order sustaining a demurrer, an appellate court accepts the truth of the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but does not accept conclusions of the pleader. Twin Towers Dev. v. Butternut Apartments, 257 Neb. 511, 599 N.W.2d 839 (1999). An order sustaining a demurrer will be affirmed if any one of the grounds on which it was asserted is well taken. Gordon v. Community First State Bank, 255 Neb. 637, 587 N.W.2d 343 (1998).
If, upon the sustainment of a demurrer, it is clear that no reasonable possibility exists that an amendment will correct a pleading defect, leave to amend need not be granted. Neb. Against Exp. Gmblg. v. Neb. Horsemen's Assn., 258 Neb. 690, 605 N.W.2d 803 (2000).
Prokop first assigns that the district court erred by finding some of his claims barred by the statute of limitations. Because we determine that the statute of limitations has expired in regard to Prokop's claims of libel or slander and malicious prosecution of Hoch's November 1988 lawsuit, we conclude that Prokop's first assignment of error is without merit.
If a petition alleges a cause of action ostensibly barred by the statute of limitations and fails to allege some excuse tolling the operation and bar of the statute, the petition fails to allege sufficient facts to constitute a cause of action and is subject to a demurrer. LaPan v. Myers, 241 Neb. 790, 491 N.W.2d 46 (1992). Under Neb. Rev.Stat. § 25-208 (Reissue 1995), actions for libel, slander, and malicious prosecution are required to have been filed within 1 year from accrual of the cause of action. This court has stated that a cause of action for slander or libel accrues on the date of publication of the defamatory matter. La-Pan v. Myers, supra.
Prokop's petition does not clarify whether his claim is one for libel or for slander; however, such a distinction is irrelevant to our analysis because Prokop's claim was not filed within 1 year from the date of publication of the matter which Prokop claims was defamatory.
Prokop alleges that Hoch's filing of the December 1988 lawsuit, as well as the media attention garnered by the lawsuit, was defamatory. The record reveals that Hoch filed her petition in the December 1988 lawsuit on December 5, 1988. Further, various newspaper articles are attached to Prokop's petition, the most recent of which was published in December 1988. Consequently, any cause of action for libel or slander that was to be filed by Prokop must have been filed by December 1989. The instant lawsuit was filed on October 10, 1996, well after the 1-year statute of limitations had expired. It is evident from the face of Prokop's petition that any claim he may have had for libel or slander is barred by the statute of limitations.
Likewise, to successfully plead that any of the appellees maliciously prosecuted the November 1988 lawsuit, Prokop must allege facts which suggest the instant lawsuit was filed within 1 year of the dismissal of the November 1988 lawsuit, which dismissal Prokop claims occurred on November 2, 1988. See Hackler v. Miller, 79 Neb. 209, 114 N.W. 274 (1907) (on rehearing) ( that statute of limitations for malicious prosecution does not begin running until underlying case is terminated). Prokop's initial petition in the instant case was filed October 10, 1996, nearly 7 years after the November 1988 lawsuit had been dismissed. Thus, Prokop's petition also shows that his claim for malicious prosecution of Hoch's November 1988 lawsuit is barred by the statute of limitations. We therefore determine that the district court properly granted the appellees' demurrers on the basis that certain claims were barred by ...
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