Steinhausen v. HomeServices of Neb., Inc.

• Citation: 857 N.W.2d 816
• Decision Date: 23 January 2015
• Docket Number: No. S–13–1103,S–13–1103
• Parties: Matthew M. Steinhausen, doing business as Steinhausen Home Inspections LLC, appellant, v. HomeServices of Nebraska, Inc., et al., appellees.
• Court: Supreme Court of Nebraska

857 N.W.2d 816

Matthew M. Steinhausen, doing business as Steinhausen Home Inspections LLC, appellant

v.HomeServices of Nebraska, Inc., et al., appellees.

No. S–13–1103

Supreme Court of Nebraska.

Filed January 23, 2015

Matthew M. Steinhausen, pro se.

Shawn D. Renner, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellee Shelly J. Nitz.

Michael D. Reisbig and Brian D. Nolan, of Nolan, Olson & Stryker, P.C., L.L.O., for appellees HomeServices of Nebraska, Inc., and Woods Brothers Realty.

Heavican, C.J., Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1. Summary Judgment: Appeal and Error.An appellate court will affirm a lower court's grant of summary 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.

2. Summary Judgment: Appeal and Error.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.

3. Attorney and Client: Actions.A legal proceeding in which a party is represented by a person not admitted to practice law is a nullity and is subject to dismissal.

4. Attorneys at Law: Attorney and Client.A licensed member of the Nebraska bar must represent a limited liability company in the courts of this state.

5. Attorney and Client: Parties: Appeal and Error.When a layperson appeals both in his own behalf and on behalf of a business entity, an appellate court dismisses the appeal as to the entity but considers the merits of the appeal as to the errors assigned by the layperson in his own behalf.

6. Actions: Pleadings: Parties.The character in which one is a party to a suit, and the capacity in which a party sues, is determined from the allegations of the pleadings and not from the caption alone.

7. Courts: Actions: Parties: Complaints: Pleadings: Records.If the capacity in which a party sues is doubtful, a court may examine the complaint, the pleadings as a whole, and even the entire record.

8. Actions: Pleadings: Parties.When the pleadings show a cause of action by a person in his individual capacity, a court may reject words indicating representative capacity.

9. Libel and Slander: Negligence.A defamation claim has four elements: (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged publication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

10. Libel and Slander.A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

11. Libel and Slander: Proof.The threshold question in a defamation suit is whether a reasonable fact finder could conclude that the published statements imply a provably false factual assertion.

12. Constitutional Law: Libel and Slander.To distinguish fact from opinion in a defamation claim, courts apply a totality of the circumstances test. Relevant

factors include (1) whether the general tenor of the entire work negates the impression that the defendant asserted an objective fact, (2) whether the defendant used figurative or hyperbolic language, and (3) whether the statement is susceptible of being proved true or false.

13. Actions: Libel and Slander.Rhetorical hyperbole—language that, in context, is obviously understood as an exaggeration rather than as a statement of literal fact—is not actionable.

14. Actions: Libel and Slander.If a plaintiff asserts claims of both libel and false light invasion of privacy based on the same statement, the false light claim is subsumed within the defamation claim and is not separately actionable.

15. Torts: Intent: Proof.To succeed on a claim for tortious interference with a business relationship or expectancy, a plaintiff must prove (1) the existence of a valid business relationship or expectancy, (2) knowledge by the interferer of the relationship or expectancy, (3) an unjustified intentional act of interference on the part of the interferer, (4) proof that the interference caused the harm sustained, and (5) damage to the party whose relationship or expectancy was disrupted.

16. Torts: Corporations.Members of a limited liability company cannot, in their own behalf, maintain a claim for tortious interference with the business relationships or expectancies of the company.

17. Trial: Evidence: Appeal and Error.In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party.

18. Trial: Evidence: Appeal and Error.The exclusion of evidence is ordinarily not prejudicial where substantially similar evidence is admitted without objection.

Connolly, J.

I. SUMMARY

Shelly J. Nitz is a real estate agent affiliated with HomeServices of Nebraska, Inc. (HomeServices). Matthew M.

Steinhausen is a home inspector who inspected a house that one of Nitz' clients owned. More than 2 years after the inspection, Nitz sent an e-mail to HomeServices real estate agents and employees stating that Steinhausen was a “[t]otal idiot.” Steinhausen, proceeding pro se, sued Nitz and HomeServices, alleging claims of libel, false light invasion of privacy, and tortious interference with a business relationship or expectancy. The district court sustained Nitz' and HomeServices' motions for summary judgment, reasoning that a qualified privilege protected the e-mail and that the evidence failed to show that Steinhausen had a business relationship or expectancy with Nitz or HomeServices. We affirm the court's judgment as it relates to the claims asserted by Steinhausen in his personal capacity. Because Steinhausen's attempt to also prosecute this action for a business entity is a nullity, we reverse, and remand with directions to vacate the judgment as it relates to claims brought for the entity.

II. BACKGROUND

1. Factual Background

HomeServices is a brokerage firm whose business includes real estate sales. HomeServices does business as HOME Real Estate and Woods Brothers Realty, both of which are trade names owned by HomeServices and “not corporate entities.” Nitz is a real estate agent affiliated with HomeServices.

Steinhausen began performing home inspections in 1999. After operating the business as a sole proprietorship, Steinhausen formed Steinhausen Home Inspections LLC (SHI) in 2004. Steinhausen is the sole member of SHI and its registered agent. SHI's primary business is home inspections, but it also performs commercial property inspections and offers consulting services.

In 2008, Nitz represented the seller of a home in Seward, Nebraska. A potential buyer exercised her right to a home inspection, and Steinhausen performed the inspection. Nitz testified that some of the items in Steinhausen's report “were unquestionably beyond the scope of a typical home inspection.” Nitz felt that Steinhausen's comments on “non-condition related items” were “likely to tear apart transactions when

property condition was not a real issue, to the detriment of a seller.”

HomeServices provides its real estate agents with access to a company e-mail network. The network uses “group email lists,” or listservs, including the “HRE–HOTSHEET” and “WBR–HOTSHEET” lists (collectively the Hotsheets). The Hotsheets include the e-mail addresses of current HomeServices real estate agents and employees and are accessed through their individual e-mail accounts.

HomeServices' vice president stated that agents use the Hotsheets as a forum to share information and opinions on topics related to the real estate business:

It is common for HomeServices Sales Associates to use the Hotsheets to send emails to other HomeServices Sales Associates to obtain information, market properties, and discuss current issues or questions on which they share a common interest, for example, questions or comments about particular aspects of real estate transactions, availability of properties and developments, real estate rules, regulations and practices and how they relate to real estate transactions, or questions or comments about vendors who work in the real estate sales community.

Nitz averred that, in her experience, HomeServices agents use the Hotsheets to communicate amongst themselves their opinions of other Realtors and vendors in the real estate business.

On January 14, 2011, Nitz posted a reply to an e-mail on the Hotsheets with the subject “RE: Steinhausen inspections.” Nitz' e-mail stated in its entirety: “He did an inspection in Seward for the agent that sold one of my listings. I will never let him near one of my listings ever again!!! Total idiot.”

The record shows that at least two other HomeServices agents sent e-mails on the same subject to the Hotsheets before Nitz sent her e-mail. The author of the first e-mail stated, “IN MY OPINION,” Steinhausen was not qualified to inspect residential structures. The author of the second e-mail stated that inspections performed by Steinhausen were poor and that Steinhausen addressed issues unrelated to structural soundness.

After Nitz sent her e-mail, another HomeServices agent replied that Steinhausen was “not professional.”

Nitz stated that she “did not have any specific facts in mind” when she wrote her e-mail. Nitz did “recall[ ] having a generally negative impression of ... Steinhausen and the inspection he conducted” and used the phrase “ ‘total idiot’ ” to “express that generally negative opinion.”

At some point in January 2011, Steinhausen received an anonymous letter in the U.S. mail that included a copy of Nitz' e-mail. Steinhausen testified that the letter had no return...