White v. Ardan, Inc.

• Decision Date: 30 September 1988
• Docket Number: No. 86-791,86-791
• Citation: 430 N.W.2d 27,230 Neb. 11
• Parties: , 3 IER Cases 1640 Terry WHITE, Betsy E. Brewer, and Rita Smailys, Appellants, v. ARDAN, INC., and Gary Curl, Appellees.
• Court: Nebraska Supreme Court

Page 27

430 N.W.2d 27

230 Neb. 11, 3 IER Cases 1640

Terry WHITE, Betsy E. Brewer, and Rita Smailys, Appellants, v. ARDAN, INC., and Gary Curl, Appellees.

No. 86-791.

Supreme Court of Nebraska.

Sept. 30, 1988.

Syllabus by the Court

1. Trial: Pleadings: Pretrial Procedure. A motion for judgment on the pleadings is properly granted when it appears from the pleadings that only a question of law is presented.

2. Trial: Pleadings: Pretrial Procedure. A motion for judgment on the pleadings admits the truth of all well-pleaded facts in the opposing party's pleadings, together with all reasonable inferences to be drawn therefrom, and the moving party admits, for the purpose of the motion, the untruth of his own allegations insofar as they have been controverted.

3. Trial: Pleadings: Pretrial Procedure. On a motion for judgment on the pleadings, the court may consider all the pleadings and give judgment for the party entitled thereto.

4. Rules of the Supreme Court: Appeal and Error. It is the duty of counsel, in briefing a case for this court, to comply with the rules, and so assist the court in the ready transaction of business. If counsel fails to do so, the court may, at its option, correct any manifest error observed in the record which is of such a nature as to have probably caused a miscarriage of justice.

5. Rules of the Supreme Court: Appeal and Error. It is counsel's duty to point out specifically alleged errors, and, unless the briefs indicate at what page of the bill of exceptions these may be found, the court will not search for nor consider them.

6. Employer and Employee. When employment is not for a definite term, and there are no constitutional, contractual, or statutory restrictions upon the right of discharge, an employer may lawfully discharge an employee whenever and for whatever cause he chooses, without incurring liability.

7. Summary Judgment: Appeal and Error. On appeal, the Supreme Court is required to view the evidence most favorably to a party against whom a motion for summary judgment is directed, giving to that party the benefit of all the favorable inferences which may reasonably be drawn from the evidence.

8. Summary Judgment. A party is entitled to summary judgment if the pleadings, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact, that the ultimate inferences to be drawn from those facts are clear, and that the moving party is entitled to judgment as a matter of law.

9. Libel and Slander: Proof. In an action for a libel or slander, it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff, and if the allegation be denied, the plaintiff must prove on the trial the facts, showing that the defamatory matter was published or spoken of him or her.

10. Libel and Slander. Generally, whether a publication is privileged is a question of law to be determined by the court.

11. Libel and Slander. A communication is privileged if made bona fide by one who has an interest in the subject matter to one who also has an interest in it or stands in such relation that it is a reasonable duty, or is proper, for the writer to give the information.

Bradley R. Brewer, of Brewer & Soeiro, New York City, and Warren S. Zweiback and Scott H. Rasmussen, of Zweiback, Flaherty, Betterman & Lamberty, P.C., Omaha, for appellants.

Frederick L. Warren, of Stokes, Lazarus & Carmichael, Atlanta, Ga., and C.G. Wallace III, of Thompson, Crounse, Pieper & Quinn, Omaha, for appellees.

HASTINGS, C.J., and CAPORALE, GRANT, and FAHRNBRUCH, JJ., and JOHN MURPHY, District Judge.

FAHRNBRUCH, Justice.

This is an appeal by the plaintiffs, Terry White, Betsy E. Brewer, and Rita Smailys, from the dismissal of their lawsuits against the defendants, Ardan, Inc., and Gary Curl, for (1) malicious termination of employment, (2) breach of contract by wrongful or "bad faith" discharge from employment, and (3) defamation. We affirm.

Plaintiffs contend their firings were based upon false statements that they were involved in dishonest acts during their employment at an Ardan, Inc., retail store in Omaha. Plaintiffs accuse the defendant Gary Curl, an Ardan security executive, of making the false statements.

In regard to the claims for malicious termination of employment and breach of contract by wrongful or "bad faith" discharge from employment, both defendants filed a motion for partial judgment on the pleadings. After argument, the motions were sustained, and these two claims were dismissed by the trial court.

A motion for judgment on the pleadings is properly granted when it appears from the pleadings that only a question of law is presented. A motion for judgment on the pleadings admits the truth of all well-pleaded facts in the opposing party's pleadings, together with all reasonable inferences to be drawn therefrom, and the moving party admits, for the purpose of the motion, the untruth of his own allegations insofar as they have been controverted. On a motion for judgment on the pleadings, the court may consider all the pleadings and give judgment for the party entitled thereto. Mueller v. Union Pacific Railroad, 220 Neb. 742, 371 N.W.2d 732 (1985). See, also, Wood v. Tesch, 222 Neb. 654, 386 N.W.2d 436 (1986).

On appeal, plaintiffs claim the trial court erred in determining that Nebraska does not recognize a cause of action in tort for malicious termination of employment or a cause of action sounding in breach of contract for "bad faith" discharge based upon a "public policy" exception to the employment-at-will doctrine.

In analyzing the record and plaintiffs' briefs, we note their initial brief is not prepared in accordance with the rules of this court. Facts are cited and argued without proper reference to the record. See Neb.Ct.R. of Prac. 9 (rev.1986). Plaintiffs' brief sets forth a proposition of law followed by a list of 38 "supporting authorities." Only five cases from that list are cited in the brief, and some of those are not properly cited or referenced.

It has long been the rule of this court that it is counsel's duty to point out specifically alleged errors, and, unless the briefs indicate at what page of the bill of exceptions these may be found, the court will not search for nor consider them. See Stroman v. Atlas Refining Corporation, 112 Neb. 187, 199 N.W. 26 (1924). It is the duty of counsel in briefing a case for this court to comply with the rules, and so assist the court in the ready transaction of business. If counsel fails to do so, the court may, at its option, correct any plain error observed in the record which is of such a nature as to have probably caused a miscarriage of justice. See, In re Estate of Fischer, 227 Neb. 722, 419 N.W.2d 860 (1988); In re Interest of A.W., 224 Neb. 764, 401 N.W.2d 477 (1987); Winterringer v. Sellen, 97 Neb. 739, 151 N.W. 162 (1915).

There is no pleading or claim that the plaintiffs were employed by Ardan for a definite period of time. Since all parties treated the plaintiffs as employees at will, we also shall treat them as such.

Plaintiffs first claim they were discharged from Ardan's employment maliciously. In their brief, plaintiffs alleged:

Nebraska should recognize and does recognize both (a) a cause of action sounding in tort for malicious termination of employment and (b) a cause of action sounding in contract for discharge in bad faith where the plaintiff alleges that he was discharged from his employment (1) without reasonable cause, (2) on the basis of knowingly false allegations of dishonesty and theft of property, and (3) for the specific purpose of depriving him of valuable terms and conditions of employment enjoyed by the plaintiff as a matter of contractual right before the discharge.

(Emphasis supplied.) Brief for appellants at 6.

For that proposition of law, plaintiffs cite the Nebraska case of Mau v. Omaha Nat. Bank, 207 Neb. 308, 299 N.W.2d 147 (1980). Their reliance is misplaced. Mau stands for the general rule that when employment is not for a definite term, and there are no contractual or statutory restrictions upon the right of discharge, an employer may lawfully discharge an employee whenever and for whatever cause he chooses, without incurring liability.

Mau does recognize that the employment-at-will rule is not, in some jurisdictions, an absolute bar to a claim of wrongful discharge. In a number of jurisdictions, an exception to the "terminable-at-will" rule has been articulated in recent years. Under this exception, an employee may claim damages for wrongful discharge when the motivation for the firing contravenes public policy. At the time of Mau, Nebraska had not adopted the exception.

Certain exceptions to the "terminable-at-will" rule have, however, been recognized by this court. Those instances include where the discharge infringes upon a constitutionally protected interest of the employee and where a statute or contract prohibits an employer from discharging an employee for a particular reason or without good cause. Schriner v. Meginnis Ford Co., 228 Neb. 85, 421 N.W.2d 755, (1988), lists a number of Nebraska cases supporting these propositions.

In this case, our attention has not been directed to, nor have we found, any Nebraska case that recognizes a cause of action sounding in tort for malicious termination of employment. As previously stated, unless constitutionally, statutorily, or contractually prohibited, an employer may terminate an at-will employee at any time with or without reason and not be liable for his actions.

There are no allegations which bring the plaintiffs within the constitutional, statutory, or contractual protection against their firings.

Plaintiffs have invited this court to declare by judicial fiat, as a matter of public policy, a cause of action for malicious termination of employment and a cause of action for "bad faith" discharge from employment. It is...