Schoneweis v. Dando

• Decision Date: 17 February 1989
• Docket Number: No. 87-372,87-372
• Citation: 435 N.W.2d 666,231 Neb. 180
• Parties: , 81 A.L.R.4th 363 Alice SCHONEWEIS, Appellant and Cross-Appellee, v. John DANDO and First National Bank of Beatrice, Nebraska, Appellees and Cross-Appellants.
• Court: Nebraska Supreme Court

Page 666

435 N.W.2d 666

231 Neb. 180, 81 A.L.R.4th 363

Alice SCHONEWEIS, Appellant and Cross-Appellee, v. John DANDO and First National Bank of Beatrice, Nebraska, Appellees and Cross-Appellants.

No. 87-372.

Supreme Court of Nebraska.

Feb. 17, 1989.

Syllabus by the Court

1. Judgments: Final Orders. Conditional orders purporting to automatically dismiss an action upon a party's failure to act within a set time are void as not performing in praesenti, and thus have no force or effect.

2. Actions: Words and Phrases. A cause of action consists of the fact or facts which give one the right to judicial relief.

3. Demurrer: Pleadings. When considering a demurrer, the petition is to be liberally construed; if as so construed the petition states a cause of action, the demurrer is to be overruled.

4. Demurrer: Pleadings. In ruling on a demurrer challenging the sufficiency of the allegations to state a cause of action, a court is required to accept the truth of facts well pled and the factual and legal inferences which may reasonably be deduced from such facts, but does not accept the conclusions of the pleader.

5. Invasion of Privacy: Words and Phrases. The gravamen of the conduct made actionable by Neb.Rev.Stat. § 20-204 (Reissue 1987) is the dissemination of offending material to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.

6. Invasion of Privacy: Words and Phrases: Liability. For purposes of liability based on invasion of privacy, a distinction is drawn between "pure opinion" and "mixed opinion." Pure opinion may be of two types. In one, the declarant states the facts on which the opinion is based and expresses comment as to the subject's conduct, qualifications, or character. In the other, the declarant states the opinion without stating the alleged facts on which it is based, but the parties to the communication know the facts or assume their existence, and the comment is clearly based on those facts. The mixed opinion, on the other hand, is based on facts concerning the subject or the subject's conduct, which have neither been stated by the declarant nor assumed by the parties to the communication, but the nature of the publication is such as to give rise to the inference that the declarant knows the undisclosed facts which justify formation of the opinion.

7. Invasion of Privacy: Liability. Liability based on invasion of privacy may not be predicated on the expression of pure opinion.

8. Banks and Banking: Invasion of Privacy: Debtors and Creditors. A bank has no obligation to refrain from disclosing its borrower's failure to repay her or his loan.

David H. Hahn, Lincoln, for appellant and cross-appellee.

Gregory H. Perry, of Perry, Perry, Witthoff, Guthery, Haase & Gessford, P.C., Lincoln, for appellees and cross-appellants.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

By her amended petition, plaintiff-appellant, Alice Schoneweis, asserts, so far as is relevant to this appeal, that the defendant-appellee John Dando and his employer, defendant-appellee First National Bank of Beatrice, a national banking association, invaded her privacy and wrongfully revealed her financial condition to others. Each of the defendants demurred under the provisions of Neb.Rev.Stat. § 25-806 (Reissue 1985) on the grounds Schoneweis' amended petition both misjoined causes of action and failed to state facts constituting any cause of action. The district court sustained the demurrers and dismissed Schoneweis' suit. She appeals, assigning error to the dismissal of her amended petition. Defendants cross-appeal, contending Schoneweis' failure to amend her original petition within the time set by the district court deprives this court of jurisdiction to entertain her appeal. For the reasons discussed hereinafter, this court has jurisdiction, and we affirm the judgment of the district court.

I. JURISDICTION

Defendants' jurisdictional attack stems from the district court's order of November 5, 1986, which sustained their demurrers to Schoneweis' original petition and provided that if Schoneweis should fail to file an amended petition within 2 weeks, her suit would stand dismissed at her costs. Schoneweis did not file her amended petition until November 21, 1986, 2 days after the November 19, 1986, deadline purportedly imposed by the November 5 order. Defendants contend that in granting Schoneweis leave to file her amended petition out of time, the district court abused its discretion, as the suit had been dismissed by operation of the earlier order, and the district court thus had nothing before it on which it could act.

However, as defendants recognized at oral argument before the division to which this case was originally assigned, this court has declared that conditional orders purporting to automatically dismiss an action upon a party's failure to act within a set time are void as not performing in praesenti, and thus have no force or effect. Snell v. Snell, 230 Neb. 764, 433 N.W.2d 200 (1988); Building Systems, Inc. v. Medical Center, Ltd., 228 Neb. 168, 421 N.W.2d 773 (1988); W & K Farms v. Hi-Line Farms, 226 Neb. 895, 416 N.W.2d 10 (1987); Federal Land Bank of Omaha v. Johnson, 226 Neb. 877, 415 N.W.2d 478 (1987); Lemburg v. Adams County, 225 Neb. 289, 404 N.W.2d 429 (1987). Consequently, as the case was not dismissed pursuant to the court's conditional order and thus was pending before the district court when it extended the time for filing the amended petition, it did not abuse its discretion in permitting Schoneweis to do so. There is, therefore, no merit to defendants' resistance to this court's review of the district court's dismissal of Schoneweis' amended suit.

II. ALLEGATIONS OF PETITION

Hence, we turn our attention to the relevant allegations of Schoneweis' amended petition. That document, in summary, asserts that Schoneweis had done business with First National for a number of years prior to 1985, both borrowing money from it to operate a farm with her husband and maintaining with it a depository account; that on February 21, 1985, she, pursuant to Dando's request, as he at all times acted as an agent of and on behalf of First National, signed a promissory note renewing a preexisting loan for which only her husband had been liable; that following the death of her husband shortly thereafter, Dando again asked Schoneweis to sign "new notes in order to keep the farm and the cattle" and that she, on or about April 16, 1985, signed notes which became due June 1, 1985; that although she had no discussion with Dando or other agents of First National concerning satisfaction of these notes, Dando, during the latter part of August and September of 1985, revealed the condition of Schoneweis' loans and depository account to her father, mother-in-law, and brother-in-law, falsely and recklessly indicating that the Schoneweis "farm was in trouble" and that Schoneweis "would loose [sic] everything"; that such was done in an effort to coerce Schoneweis into conveying to First National assets that it could not otherwise reach; and that as a result she was damaged in that her reputation was injured and she suffered emotional disturbance and a loss of earning capacity by (1) being placed "in a false light with her friends and family" and (2) First National's breach of its separate "duty not to disclose personal financial information" about her to third parties.

III. DEMURRERS

We first consider whether, as claimed by the defendants' separate demurrers, Schoneweis' amended petition improperly joins causes of action contrary to the prohibition of § 25-806(5). We have characterized a cause of action as the " 'judicial protection of one's recognized right or interest, when another, owing a corresponding duty not to invade or violate such right or interest, has caused a breach of that duty.' " Ravenna Bank v. Custom Unlimited, 223 Neb. 540, 544, 391 N.W.2d 557, 560 (1986). Accord First Nat. Bank of Omaha v. State, 230 Neb. 259, 430 N.W.2d 893 (1988). We have also said that in a general sense, a cause of action is the claim or subject matter upon which suit may be maintained. In short, a cause of action consists of the fact or facts which give one the right to judicial relief. Interholzinger v. Estate of Dent, 214 Neb. 264, 333 N.W.2d 895 (1983). See, also, Schuyler State Bank v. Cech, 228 Neb. 588, 423 N.W.2d 464 (1988), which states that with respect to a demurrer, a statement of " 'facts sufficient to constitute a cause of action,' " as contemplated by § 25-806(6), means " 'a narrative of the events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff.' " 228 Neb. at 593, 423 N.W.2d at 468. Schoneweis' claims to judicial relief rest on but one body of facts, the essential feature of which is the alleged disclosure of her financial posture with First National to third persons. Thus, she seeks to recover under two legal theories which rest on that single body of facts: (1) the claimed invasion of her privacy by the disclosure and (2) First National's breach of its claimed separate duty not to make such disclosure. Since both theories of recovery rest upon the same body of facts, Schoneweis has not misjoined causes of action.

This leaves for consideration the question of whether the facts Schoneweis has alleged constitute a cause of action at all; phrased another way, the question is whether Schoneweis has alleged the violation of at least one judicially protected right or interest. In making the analyses required to answer that question with respect to each of her theories of recovery, we are bound by the rule that when considering a demurrer, the petition is to be liberally construed; if as so construed the petition states a cause of action, the demurrer is to be overruled. Hebard v. AT & T, 228 Neb. 15, 421 N.W.2d 10 (1988); ...