Choice Homes v. Donner , 311 Neb. 835 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/09/2022 01:07 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
CHOICE HOMES v. DONNER
Cite as 311 Neb. 835Choice Homes, LLC, appellant, v. Heidi Donner,
individually and as Personal Representative
of the Estate of Jeffrey B. Jackson,
deceased, appellee.
___ N.W.2d ___
Filed June 24, 2022. No. S-21-572.
1. Summary Judgment: Appeal and Error. An appellate court affirms 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. ____: ____. An appellate court reviews the district court’s grant of sum-
mary judgment de novo, viewing the record in the light most favorable
to the nonmoving party and drawing all reasonable inferences in that
party’s favor.
3. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
4. Real Estate: Sales: Agents. Pursuant to the Nebraska Real Estate
License Act, any person collecting a fee or commission on the sale of
real estate must be a licensed real estate broker or salesperson unless he
or she meets one of the exceptions provided in the act.
5. Statutes. Statutory interpretation is a question of law.
6. ____. Statutory interpretation begins with the text, and the text is to be
given its plain and ordinary meaning.
7. Statutes: Appeal and Error. An appellate court will not resort to inter-
pretation of statutory language to ascertain the meaning of words which
are plain, direct, and unambiguous.
8. Summary Judgment: Appeal and Error. In reviewing the district
court’s grant of summary judgment, an appellate court views the plead-
ings and admitted evidence de novo.
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CHOICE HOMES v. DONNER
Cite as 311 Neb. 8359. ____: ____. The grant of a motion for summary judgment may be
affirmed on any ground available to the trial court, even if it is not the
same reasoning the trial court relied upon.
10. Contracts: Real Estate. The Nebraska Real Estate License Act does
not mandate that a person be compensated in a specific manner such as
through a commission fee in a purchase agreement.
11. Contracts: Real Estate: Vendor and Vendee. If the owner of real
estate enters into a contract of sale whereby the purchaser agrees to buy
and the owner agrees to sell it and the vendor retains the legal title until
the purchase money or some part of it is paid, the ownership of the real
estate as such passes to and vests in the purchaser, and that from the date
of the contract the vendor holds the legal title as security for a debt as
trustee for the purchaser.
12. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
13. Libel and Slander: Negligence. A defamation claim has four elements:
(1) a false and defamatory statement concerning the claimant, (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.
14. Libel and Slander: Proof: Statutes. By statute, truth in and of itself is
made a complete defense unless the plaintiff proves the statements were
made with actual malice.
15. Libel and Slander. The question of whether a particular publication is
defamatory is, in the first instance, a question of law for the court.
16. 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.
17. Constitutional Law: Libel and Slander. Statements of fact can be
defamatory whereas statements of opinion—the publication of which is
protected by the First Amendment—cannot.
18. Libel and Slander: Proof. In determining whether a statement implies a
provably false factual assertion, both the language of the statement and
the context in which the statement was made must be examined.
19. Constitutional Law: Libel and Slander. To distinguish fact from
opinion in a defamation claim, courts apply a totality of the circum-
stances 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
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CHOICE HOMES v. DONNER
Cite as 311 Neb. 835language, and (3) whether the statement is susceptible of being proved
true or false.
20. Libel and Slander. In addition to the content of the communication, a
court looks to the knowledge, understanding, and reasonable expecta-
tions of the audience to whom the communication was directed, taking
cues from the broader setting in which the statement appears.
21. Actions: Libel and Slander. Rhetorical hyperbole—language that, in
context, was obviously understood as an exaggeration, rather than a
statement of literal fact—is not actionable.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed.
Christian R. Blunk, of Harris & Associates, P.C., L.L.O., and
Douglas W. Ruge for appellant.
William N. Beerman and Patrick M. Flood, of Pansing,
Hogan, Ernst & Bachman, L.L.P., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
Choice Homes, LLC (Choice), appeals from an adverse
summary judgment. Most of its claims stemmed from two
failed purchase agreements—where it attempted to buy real
estate (the property) from the owners and then sell it to the
buyers. After the closing failed, the buyers purchased the prop-
erty directly from the owners. Choice sued for money damages
on the purchase-related claims and on a defamation claim for
an online review posted by one of the buyers. The district court
found that the Nebraska Real Estate License Act 1 (the Act)
barred Choice’s claims regarding the failed transaction and that
the review contained only opinions and undisputedly true fac-
tual statements. Finding no reversible error, we affirm.
1
See Neb. Rev. Stat. §§ 81-885.01 to 81-885.55 (Reissue 2014 & Cum.
Supp. 2020).
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CHOICE HOMES v. DONNER
Cite as 311 Neb. 835II. BACKGROUND
Before detailing the events underlying this appeal, we pro-
vide context by describing the property and identifying the
persons involved.
1. Context
(a) Property
The property features a residential home that sits on a slope
and abuts a river. Historically, the property suffered from ero-
sion issues. Periodically, the property’s slope would “collapse.”
Occasionally, since 1993, an engineering company conducted
soil sample studies to monitor the property’s erosion.
Around 2008, the slope behind the residential home suffered
a significant collapse that required repairs. The engineering
company conducted another soil sample study on the slope and
proposed a plan to “rehab” the slope in 2009.
Following the study, the property’s slope was regraded.
However, the engineering company did not conduct another
soil sample study after the slope was repaired.
(b) Persons
(i) Choice
Choice is a construction contractor that buys real estate and
constructs residential homes. Often, Choice works with clients
to purchase real estate and build a “custom” residential home
on it.
Choice was owned by two individuals—Jason Gillman and
Chad Bumsted. Choice claimed that Gillman and Bumsted
were its only employees, because it delegated all its con-
struction work and “office work” to subcontractors. None of
Choice’s employees were licensed real estate brokers, licensed
associate brokers, or licensed salespersons. (For convenience,
we refer to licensed real estate brokers, licensed associate bro-
kers, and licensed salespersons collectively as “licensees.”)
During the relevant events, Gillman served as Choice’s
primary representative. The vast majority of Choice’s conduct
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Cite as 311 Neb. 835occurred through Gillman, acting on its behalf. For instance,
Gillman negotiated with the owners and buyers, signed legal
documents, and made representations on behalf of Choice.
Bumsted played only a minor role, by corresponding with third
parties through email.
(ii) Owners
Alan and Carol Parsow (collectively the owners) owned the
property. They were not named as parties in Choice’s com-
plaint, but their conduct is pertinent to the instant appeal. The
record does not show whether the owners were deposed or
otherwise involved in any discovery proceedings.
(iii) Buyers
Heidi Donner and Jeffrey B. Jackson (collectively the buy-
ers) sought to purchase the property. At the time of the events
preceding Choice’s lawsuit, Jackson was Donner’s husband.
The buyers had previous interactions with Gillman. They were
Gillman’s neighbors; he socialized with them, sharing drinks
together and parking his motor home in their “tailgate” loca-
tion during Nebraska football games. Jackson passed away
in January 2019—less than a month after the buyers pur-
chased the property from the owners, but before Choice filed
its complaint.
2. Timeline of Events
Because the district court decided the case by summary
judgment, we summarize the events in the light most favorable
to Choice.
(a) Negotiations
In 2018, Choice discovered the owners were considering
selling the property and commenced negotiations with them.
Choice entered into an oral agreement with the owners—where
if “[Choice] found a buyer interested in [the property, the
owners] would execute a purchase agreement and sell [it] to
[Choice] for [a set price].”
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Cite as 311 Neb. 835Soon after, Gillman approached the buyers, proposing that
they purchase the property from Choice. Gillman showed the
property to the buyers multiple times.
On September 6, 2018, Jackson and Gillman communi-
cated via text message regarding the condition of the property.
(Throughout this opinion, we quote Jackson’s and Gillman’s
text messages without correcting grammatical errors.) Jackson
asked, “Are you aware that. [The property] had erosion prob-
lems in the past[?]” Gillman responded, “Yea it was over 10
years ago my wife’s [family’s grading company] did all the
grading and it is more solid than any lot up there. Also [the
engineering company] confirmed everything it’s all good.”
Gillman’s text seemed to be referencing the soil sample study
conducted after the property’s slope collapsed, but before it
was regraded.
One day after Jackson and Gillman’s conversation via text
messages, the buyers agreed to purchase the property from
Choice. Choice executed two separate purchase agreements on
the same day—one with the owners and one with buyers. In
one agreement, Choice agreed to purchase the property from
the owners for $750,000; in the other, it agreed to sell the prop-
erty to the buyers for $1.3 million. The terms of both purchase
agreements set the closing date of October 31, 2018, through
an escrowed transaction. The purchase agreement also required
the buyers to provide Choice an additional $70,000 for “lost
building fees,” because the buyers chose a different contrac-
tor to build a new home on the property. Ultimately, Choice
expected to profit by $620,000 from the transaction.
(b) Before Closing
Following the parties’ signing their respective purchase
agreements, each party began to complete their contractual
duties to close on the property.
Choice and the owners completed most of their contractual
obligations under their purchase agreement. The owners com-
pleted a seller disclosure statement, as required by Neb. Rev.
Stat. § 76-2,120 (Reissue 2018), which disclosed the previous
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Cite as 311 Neb. 835erosion issues. Choice also obtained a loan to purchase the
property from the owners.
However, the events differed between Choice and the buy-
ers. Choice failed to complete its contractual obligations, and
the buyers ultimately chose not to purchase the property.
Choice never provided a current title insurance commitment
or a complete abstract of title to the buyers, as required under
the purchase agreement. Choice directed a third party to pre-
pare and deliver these documents to the buyers. However, the
buyers denied receiving them.
Additionally, Choice never completed its own seller’s dis-
closure statement. Choice provided the owners’ seller disclo-
sure statement to the buyers.
(c) Failure to Close
On October 5, 2018, Jackson texted Gillman and indicated
that the buyers would not close on the property, claiming Choice
did not disclose the erosion issues. Jackson stated, “I will not
execute the contract as the erosion was not advised up front
and I am very concerned[.]” Donner testified that Jackson was
upset that Gillman did not disclose any information or reports
on the property’s erosion history. Donner stated, “Most our
information came from Carol Parsow about the erosion.”
Gillman responded to Jackson’s refusal to close by reaffirm-
ing his representation that the property no longer suffered from
erosion issues. Gillman stated, “What I will call you this morn-
ing The ground is more secure than any ground up there. [The
grading company] and [engineering company] did all the work
like discussed[.]” However, Choice never sought to force the
buyers to close on the property, because “there wasn’t a whole
lot of communication after that point.”
Gillman claimed in his deposition that Alan Parsow com-
municated with him after the buyers told Choice that they
would not purchase the property. Gillman testified that Alan
Parsow stated:
[The owners were not] going to pursue [their purchase
agreement] with [Choice] and make [it] close on [the
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Cite as 311 Neb. 835purchase agreement] because if [the owners] would have,
[it] would have had to close because [it] had a [purchase
agreement] to close with [the owners], and he basically
said [the owners were not] going to pursue [the pur-
chase agreement].
After Choice’s conversations with the owners, it never sought
to enforce its purchase agreement with them, because “that was
about it after that.”
Choice did not close on the property pursuant to either pur-
chase agreement.
(d) Aftermath
In November 2018, the owners communicated with the buy-
ers directly and inquired whether they would be interested in
purchasing the property. Gillman attempted to interject Choice
into the owners and buyers’ discussions to “try[] to keep the
agreements between [it, the owners, and the buyers] alive.”
However, the owners and buyers chose not to involve Choice
in the discussions.
The owners sold the property to the buyers for $825,000
on December 24, 2018. Choice was not involved in the sale.
Jackson passed away on January 12, 2019.
Months later, Donner posted a negative “Google Review” of
Gillman and “Choice Custom Homes” (the review). For con-
venience, we quote the review in full in the analysis section.
3. District Court
Choice sued Donner, both as an individual and in her capac-
ity as the personal representative of Jackson’s estate (hereafter
collectively Donner). It did not include the owners as parties in
the action. We first summarize the pleadings and then turn to
the arguments asserted on summary judgment.
(a) Complaint and Answer
Choice alleged that Donner committed fraud, tortiously
interfered with its business expectation, breached their pur-
chase agreement, breached their implied covenant to act in
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Cite as 311 Neb. 835good faith, and were unjustly enriched. Choice also alleged
that it had been defamed by the review.
In Donner’s answer, she denied Choice’s claims. She
asserted an affirmative defense that she was not liable for defa-
mation, because her statements were true. Donner also asserted
counterclaims against Choice for fraud and unjust enrichment.
Donner did not join the owners as third-party defendants.
For convenience, we divide Choice’s claims into two
overarching categories: (1) nondefamation and (2) defama-
tion. The first category includes all of Choice’s claims other
than its defamation claim. The latter includes only the claim
for defamation.
(i) Nondefamation Claims
The crux of Choice’s nondefamation claims were that it
suffered monetary damages from the buyers’ purchasing the
property directly from the owners instead of through it. In
Gillman’s deposition, he characterized Choice’s damages as
“getting due what’s fairly due to [Choice] for finding the prop-
erty and introducing the two parties together and finding [the
buyers’] dream property for them and [the owners] to get out
of [the property].” When asked “what prohibited [the buyers]
from reaching a separate deal with [the owners]” after Choice
failed to close on the property, Gillman responded, “Ethical.
Being ethical. Making sure that you’re fair to all parties
involved. . . . [T]hey didn’t even know about each other. They
didn’t know about the property. . . . [T]he ethical part of this
as far as like just taking somebody out of an agreement . . . .”
Gillman asserted that the buyers could never buy the property
from the owners at any time, because “[Choice] had the agree-
ment with them, so the ethical and right thing to do is to honor
their agreement if they’re going to buy [the property].”
(ii) Defamation Claim
Even though the review described actions of Gillman,
Choice asserted that the statements damaged its reputation
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Cite as 311 Neb. 835and resulted in a decline in its business opportunities, because
Gillman interacted with the public on its behalf.
(b) Summary Judgment
Donner filed a “Motion for Partial Summary Judgment.”
The motion addressed only Choice’s claims against Donner; it
did not address Donner’s counterclaims against Choice.
(i) Donner’s Arguments
In support of Donner’s motion, she asserted that Choice’s
claims were barred or unable to be proved through the evi-
dence in the record. Donner characterized Choice’s role in the
failed transaction as that of a real estate broker facilitating the
sale of the property from the owners to them. Donner argued
the Act barred Choice—a nonlicensee—from recovering com-
pensation for facilitating the sale of the property. Donner also
argued that her statements in the review did not constitute defa-
mation, because they were opinions.
(ii) Choice’s Arguments
Choice opposed Donner’s motion for summary judgment.
Choice argued that the Act did not bar its nondefamation
claims, because “‘the present case does not involved [sic]
compensation paid by [the owners] through a listing for the
location of a buyer.’” Choice also contended that this was not
“‘a situation where someone is acting as a broker where a com-
mission would be paid for acting as a broker in negotiating a
transaction between a buyer and seller.’” Alternatively, Choice
argued that its conduct fell under § 81-885.04(1)—an excep-
tion to the Act—and therefore, its nondefamation claims were
not barred. 2
(c) Ruling
The court “granted in full” Donner’s motion for sum-
mary judgment and dismissed Choice’s complaint. The court
found that the Act barred Choice’s nondefamation claims and
2
See § 81-885.04(1).
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Cite as 311 Neb. 835that Choice was not defamed by the review. The court did not
address or dispose of Donner’s counterclaims in this order. We
summarize its reasoning regarding the respective categories.
(i) Nondefamation Claims
a. Barred by the Act
The court ruled that the Act barred Choice’s nondefamation
claims, because, without being a licensee, it sought to recover
compensation for performing services governed by the Act.
The court looked beyond the “labels used by the parties, and
instead focus[ed] on the substance of the parties’ actions.” The
court found that Choice “‘for any form of compensation or
consideration’ and ʽwith the intent or expectation of receiv-
ing the same from another,’ ‘negotiated . . . [the] sale, pur-
chase[,] or option for any real estate or improvements thereon’
and ‘assist[ed] in procuring prospects’ within the meaning of
[§ 81.885.01([2])].” 3
To support its findings, the court noted that Gillman testi-
fied in his deposition that he believed Choice suffered dam-
ages from not being compensated for brokering the sale of the
property from the owners to the buyers. The court also cited
Choice’s decision to not close on its purchase of the property
after the buyers stated they would not close on their purchase
of the property from it. Finally, the court highlighted that
Choice did not complete its own seller’s disclosure statement:
“Instead, like a broker, [Choice] passed along a [seller’s disclo-
sure statement] completed by the owners . . . .”
b. Not Excepted by § 81-885.04(1)
The court was unpersuaded by Choice’s argument that its
conduct fell under § 81-885.04(1). The court found that it
was immaterial whether Choice obtained any ownership rights
under the purchase agreement, because most of its conduct
requiring a license occurred before it signed the agreement
3
See § 81-885.01(2) (quoted by district court).
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Cite as 311 Neb. 835with the owners. Further, the court noted that Choice negoti-
ated the sale of the “full legal title” in the property—not just
equitable title—and therefore, it “broker[ed] a larger interest
than [it] ever arguably held.”
The court declined to consider Choice’s oral agreement with
the owners. The court explained that Choice introduced this
agreement for the first time in Gillman’s affidavit in opposi-
tion to Donner’s motion for summary judgment (Gillman’s
affidavit). The court noted, however, that Gillman never dis-
cussed this agreement in his deposition. The court found that
Gillman’s affidavit “proffered evidence alleging facts materially
different concerning a vital issue, with the change being made
to meet the exigencies of pending litigation.” Therefore, the
court “discredited” Gillman’s affidavit, relying upon Momsen
v. Nebraska Methodist Hospital. 4
c. Alternative Findings
Even though the court found that the Act barred Choice’s
nondefamation claims, the court provided “[a]lternative [f]ind-
ings” to individually justify the dismissal of each nondefama-
tion claim. But because we will not reach those findings, we
need not summarize them.
(ii) Defamation Claim
Regarding Choice’s defamation claim, the court found that
Choice could not prove it was defamed by the review, because
Donner’s statements were not false statements of fact. First, the
court noted that Donner alleged in her pleadings that her state-
ments were true and that Choice did not present evidence that
she published her statements with actual malice. 5 Therefore,
the court stated, the statements of fact that were undisputedly
true did not defame Choice.
4
Momsen v. Nebraska Methodist Hospital, 210 Neb. 45, 313 N.W.2d 208(1981).
5
See, Neb. Rev. Stat. § 25-840 (Reissue 2016); White v. Ardan, Inc., 230
Neb. 11, 430 N.W.2d 27 (1988).
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Cite as 311 Neb. 835Further, the court explained, the statements that could not
be proved to be undisputedly true did not constitute defama-
tion, because they were her opinions. Those statements, the
court said, “[G]o to impressions of credibility, honesty, and
trustworthiness — adjectives which are subjectively formed
in an individual’s mind and are open to personal differences
of opinion.”
4. Appeal
Following the dismissal of Choice’s complaint, Donner
moved to voluntarily dismiss her counterclaims. The court sus-
tained the motion. That order disposed of all remaining claims.
We take this opportunity to remind trial courts that a recent
statutory change requires a court rendering a judgment to sign
“a single written document stating all of the relief granted or
denied in an action.” 6 Thus, where a judgment results from a
series of documents, as here, the last one should include all
relief granted or denied in the action, including relief previ-
ously set forth in interlocutory orders.
Choice filed a timely appeal. We moved the appeal to
our docket. 7
III. ASSIGNMENTS OF ERROR
Choice assigns, combined and restated, that the court erred
in finding that (1) the Act barred its nondefamation claims; (2)
it could not prove the elements of its nondefamation claims for
(a) breach of contract, (b) breach of the implied covenant to
act in good faith, and (c) tortious interference with a business
relationship or expectancy; and (3) it could not prove the ele-
ments of its defamation claim.
IV. STANDARD OF REVIEW
[1,2] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
6
Neb. Rev. Stat. § 25-1301(2) (Cum. Supp. 2020).
7
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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Cite as 311 Neb. 835show 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. 8 An appellate court reviews the district court’s grant of
summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all reason-
able inferences in that party’s favor. 9
[3] An appellate court independently reviews questions of
law decided by a lower court. 10
V. ANALYSIS
1. Nondefamation Claims
Barred by the Act
Choice argues that the district court erred in finding that the
Act barred its nondefamation claims. Choice does not dispute
that none of its employees were licensees. Rather, Choice
asserts that the Act does not apply, because it never performed
acts or rendered services prohibited by the Act or it was not
subject to the Act pursuant to § 81-885.04(1).
[4] We have held that pursuant to the Act, any person col-
lecting a fee or commission on the sale of real estate must be
a licensed real estate broker or salesperson unless he or she
meets one of the exceptions provided in the Act. 11 At this point,
we recall specific provisions of the Act.
First, the Act prohibits lawsuits for compensation by non-
licensees. “No action or suit shall be instituted, nor recovery
be had, in any court of this state by any person for com-
pensation for any act done or service rendered, the doing
8
Bogue v. Gillis, ante p. 445, 973 N.W.2d 445 (2022).
9
Id.10
Nebraska Republican Party v. Shively, ante p. 160, 971 N.W.2d 128(2022).
11
In re Estate of Ronan, 277 Neb. 516, 763 N.W.2d 704 (2009).
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Cite as 311 Neb. 835or rendering of which is prohibited under [the Act] to other
than [licensees].” 12
Second, the Act broadly defines the term “broker”:
Broker means any person who, for any form of compen-
sation or consideration or with the intent or expectation of
receiving the same from another, negotiates or attempts to
negotiate the listing, sale, purchase, exchange, rent, lease,
or option for any real estate or improvements thereon, or
assists in procuring prospects or holds himself or herself
out as a referral agent for the purpose of securing pros-
pects for the listing, sale, purchase, exchange, renting,
leasing, or optioning of any real estate or collects rents
or attempts to collect rents, gives a broker’s price opinion
or comparative market analysis, or holds himself or her-
self out as engaged in any of the foregoing. Broker also
includes any person: (a) Employed, by or on behalf of the
owner or owners of lots or other parcels of real estate,
for any form of compensation or consideration to sell
such real estate or any part thereof in lots or parcels or
make other disposition thereof; (b) who auctions, offers,
attempts, or agrees to auction real estate; or (c) who buys
or offers to buy or sell or otherwise deals in options to
buy real estate. 13
Third, the Act further defines a broker, associate broker,
or salesperson as any person “who, directly or indirectly for
another, with the intention or upon the promise of receiving
any form of compensation or consideration, offers, attempts,
or agrees to perform or performs any single act described in
[§ 81-885.01(2)], whether as a part of a transaction, or as an
entire transaction.” 14 This section also declares that “[c]ommit-
ting a single act described in [§ 81-885.01(2)] by a person
12
§ 81-885.06.
13
§ 81-885.01(2).
14
§ 81-885.03(1).
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Cite as 311 Neb. 835required to be licensed under [the Act] and not so licensed
shall constitute a violation of [the Act].” 15 For convenience, we
refer to the acts defined in §§ 81-885.01(2) and 81-885.03(1) as
“prohibited acts” throughout the remainder of this opinion.
In order to determine whether the Act barred Choice’s non-
defamation claims, we must begin with two questions. Did
Choice perform a prohibited act? And, if so, did Choice do so
with the intent to or upon the promise of receiving any form
of compensation or consideration? Then, we must determine
whether the Act’s exception for acts “as owner . . . with refer-
ence to property owned” by Choice applies here. 16
[5-7] Answering these questions requires statutory interpre-
tation, which is guided by well-settled principles. Statutory
interpretation is a question of law. 17 It begins with the text,
and the text is to be given its plain and ordinary meaning. 18
An appellate court will not resort to interpretation of statutory
language to ascertain the meaning of words which are plain,
direct, and unambiguous. 19
We digress momentarily to note that, unlike the district
court, we will consider Gillman’s affidavit in our analysis.
This affidavit was admitted into evidence. The court below
applied Momsen to disregard it. 20 Although Choice does not
specifically assign error to the court’s application of Momsen,
we assume, without deciding, that Gillman was a nonparty
witness. 21 At oral argument, Donner conceded that Gillman
was not deposed pursuant to the rule permitting identifica-
tion of an organization as the deponent. 22 This court has
15
Id.
16
See § 81-885.04(1).
17
In re Estate of Severson, 310 Neb. 982, 970 N.W.2d 94 (2022).
18
Nebraska Republican Party v. Shively, supra note 10.
19
Id.
20
See Momsen v. Nebraska Methodist Hospital, supra note 4.
21
See id.22
See Neb. Ct. R. Disc. § 6-330(b)(6) (rev. 2022).
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Cite as 311 Neb. 835repeatedly declined to extend Momsen 23 to instances of changed
testimony by nonparty witnesses, 24 and it is not necessary to do
so here.
[8,9] In reviewing the district court’s grant of summary
judgment, an appellate court views the pleadings and admit-
ted evidence de novo. 25 The grant of a motion for summary
judgment may be affirmed on any ground available to the
trial court, even if it is not the same reasoning the trial court
relied upon. 26
(a) Acts or Services Rendered
Choice asserts that it never performed any prohibited acts.
Choice focuses upon the requirement in § 81-885.03(1) that a
prohibited act must be performed “for another.” Choice argues
that because it was a party to the transactions, it acted in its
own behalf—not “for another.” For instance, Choice contends
that it did not show the property to prospective buyers for
another’s benefit. Choice claims it did so “in anticipation of
purchasing the property and then reselling it to customers who
wanted Choice to build a home on the property” instead. 27
We disagree.
Choice performed a plethora of prohibited acts for the own-
ers and buyers. It
•  procured prospective buyers for the owners,
•  solicited the sale of the property to the buyers,
•  found the buyers’ “dream property for them,”
23
Momsen v. Nebraska Methodist Hospital, supra note 4.
24
See, Breeden v. Anesthesia West, 265 Neb. 356, 656 N.W.2d 913 (2003);
Ketteler v. Daniel, 251 Neb. 287, 556 N.W.2d 623 (1996). See, also,
Momsen v. Nebraska Methodist Hospital, supra note 4.
25
See Bogue v. Gillis, supra note 8. See, also, Rodriguez v. Nielsen, 259
Neb. 264, 609 N.W.2d 368 (2000); MAPCO Ammonia Pipeline v. State Bd.
of Equal., 242 Neb. 263, 494 N.W.2d 535 (1993).
26
Zawaideh v. Nebraska Dept. of Health & Human Servs., 285 Neb. 48, 825
N.W.2d 204 (2013).
27
Brief for appellant at 24.
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Cite as 311 Neb. 835•  “introduce[d] the [owners and buyers],”
•  “made [the buyers] aware that [it] would secure [the property]
under a separate agreement with the [owners] for conveyance
to [the buyers] under the terms of the purchase agreement
between [them],”
•  negotiated the sale of the property, and
•  assisted the owners in “get[ting] out of [the property].”
While Choice may have been motivated to act in its own
behalf, the undisputed evidence shows that it performed these
prohibited acts for the owners and buyers. Our statutes prohibit
any unlicensed person (aside from those explicitly excepted
in § 81-885.04) from negotiating, attempting to negotiate, or
assisting in procuring prospects for the sale or lease of “‘any
real estate or improvements thereon.’” 28
(b) Compensation or Consideration
Choice asserts that it never expected to receive compensa-
tion from the owners or the buyers. Instead, Choice expected
to “realize a profit when [it] resold the property to a third
party.” 29 Choice argues that if it intended to be compensated by
the owners or the buyers, the purchase agreements would have
mandated that it be paid a commission fee.
This argument lacks merit. Choice expected to receive com-
pensation under its oral agreement with the owners. Choice
agreed to purchase the property from the owners for a set price
if it “found a buyer interested in [the property].” Choice would
then “realize a profit” 30 by reselling the property to a buyer
at a higher price. In essence, Choice solicited the sale of the
property and procured a buyer for the owners in exchange for
the right to simultaneously purchase and sell the property for a
$620,000 profit.
28
Ford v. American Medical International, 228 Neb. 226, 230, 422 N.W.2d
67, 70 (1988) (quoting § 81-885.01(2)) (emphasis in original).
29
Brief for appellant at 24.
30
Id.
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CHOICE HOMES v. DONNER
Cite as 311 Neb. 835[10] The Act does not mandate that a person be compen-
sated in a specific manner such as through a commission
fee in a purchase agreement. 31 All the Act requires is that
a person—who is not a licensee—perform a prohibited act
with the expectation that he or she will receive compensation
from another. 32
(c) § 81-885.04(1)
The Act barred Choice’s nondefamation claims unless
§ 81-885.04(1) applied. This statute mandates that the Act
shall not apply to:
Any person, partnership, limited liability company, or
corporation who as owner or lessor shall perform any of
the acts described in subdivision (2) of section 81-885.01
with reference to property owned or leased by him, her,
or it or to the regular employees thereof, with respect
to the property so owned or leased, when such acts are
performed in the regular course of or as an incident
to the management, sale, or other disposition of such
­property . . . . 33
Choice asserts that it owned the property, because it obtained
equitable title to the property under its purchase agreement
with the owners. Because it “owned” 34 the property, it argues,
the Act does not apply here. We disagree, because it claims
too much.
Choice does not claim that it obtained any ownership rights
in the property other than equitable title. Choice also does not
claim it obtained equitable title in the property before signing
its purchase agreement with the owners.
[11] If the owner of real estate enters into a contract of sale
whereby the purchaser agrees to buy and the owner agrees
31
See, generally, § 81-885.01 et seq.
32
See id.
33
See § 81-885.04(1).
34
See id.
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Cite as 311 Neb. 835to sell it and the vendor retains the legal title until the pur-
chase money or some part of it is paid, the ownership of the
real estate as such passes to and vests in the purchaser, and
that from the date of the contract the vendor holds the legal
title as security for a debt as trustee for the purchaser. 35 While
the current version of § 81-885.04(1) does not define “prop-
erty owned,” 36 its plain and ordinary meaning includes equi-
table title. 37
However, Choice fails to recognize that § 81-885.04(1) only
applied to the prohibited acts that it performed while it owned
the property. The statute only allowed Choice “as owner”
to “perform any [prohibited act] with reference to property
owned . . . by . . . it.” 38 The exception does not apply to pro-
hibited acts that Choice performed before or after it owned
the property.
Choice “owned” the property for less than 24 hours. Choice
obtained equitable title in the property through its purchase
agreement with the owners. However, later that day, Choice
entered into its purchase agreement with the buyers, which
transferred equitable title to them. 39 Choice had no other own-
ership interest in the property.
Choice performed multiple prohibited acts before and after
it owned the property. Choice solicited the sale of the prop-
erty, sought to procure a buyer, showed the property to the
buyers, attempted to facilitate the sale of the property, and
negotiated with the owners and buyers to “try[] to keep the
agreements between [it, the owners, and the buyers] alive.”
35
DeBoer v. Oakbrook Home Assn., 218 Neb. 813, 359 N.W.2d 768 (1984).
36
But see 2022 Neb. Laws, L.B. 892, § 2 (effective July 20, 2022). See, also,
Neb. Const. art. III, § 27.
37
See Nebraska Republican Party v. Shively, supra note 10. See, also,
DeBoer v. Oakbrook Home Assn., supra note 35.
38
See § 81-885.04(1).
39
See DeBoer v. Oakbrook Home Assn., supra note 35.
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Cite as 311 Neb. 835Therefore, the court did not err in finding the Act barred
Choice’s nondefamation claims.
2. Nondefamation Claims—
Alternative Findings
[12] Choice assigns that the court erred in finding that it
could not prove the elements of its nondefamation claims.
Because the district court correctly concluded that the Act
barred Choice’s nondefamation claims, we need not address
this assignment. An appellate court is not obligated to engage
in an analysis that is not necessary to adjudicate the case and
controversy before it. 40
3. Defamation Claim Fails
Choice assigns that the district court erred in finding it could
not prove the elements of its defamation claim. Before summa-
rizing its arguments, we quote the review, and then summarize
the applicable law.
(Prior to this section of our analysis, we have referred to
Donner collectively in her individual and representative capaci-
ties. In this section, we are referring to Donner only in her
individual capacity.)
Donner’s review (which we quote exactly) stated:
Please be careful of any contract you sign with Jason
Gillman of Choice Homes. He was a great neighbor to us
for many years. He sat in the man cave with my husband
at our place and they shared beers. We arranged for him
to park his motorhome at Nebraska football games. We
the mistake of trusting him, signed a property contract
with him, and when my husband suddenly passed away,
Jason wants to sue me, the widow, telling me this just
a few days after his passing, hoping to cash in. Please
don’t trust this man. Everything I have said is true, you
can contact me through my Facebook account if you
40
Preserve the Sandhills v. Cherry County, 310 Neb. 184, 964 N.W.2d 721(2021).
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CHOICE HOMES v. DONNER
Cite as 311 Neb. 835need verification I can provide both our lawyers and any
other proof you need.
[13,14] A defamation claim has four elements: (1) a false
and defamatory statement concerning the claimant, (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. 41
By statute, truth in and of itself is made a complete defense
unless the plaintiff proves the statements were made with
actual malice. 42
[15] The question of whether a particular publication is
defamatory is, in the first instance, a question of law for the
court. 43 As noted in the standard of review section, we review
questions of law de novo.
[16,17] The threshold question in a defamation suit is
whether a reasonable fact finder could conclude that the pub-
lished statements imply a provably false factual assertion. 44
Statements of fact can be defamatory whereas statements of
opinion—the publication of which is protected by the First
Amendment—cannot. 45 Put another way, “‘subjective impres-
sions’” cannot be defamatory, as contrasted with objective
“‘expressions of verifiable facts.’” 46
However, the U.S. Supreme Court has discouraged the
practice of dividing a speaker’s statements into “opinion”
or “fact” and only considering whether the latter statements
41
JB & Assocs. v. Nebraska Cancer Coalition, 303 Neb. 855, 932 N.W.2d 71(2019).
42
Bartels v. Retail Credit Co., 185 Neb. 304, 175 N.W.2d 292 (1970). See,
also, § 25-840.
43
Wheeler v. Nebraska State Bar Assn., 244 Neb. 786, 508 N.W.2d 917(1993).
44
Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816(2015).
45
Id.46
Id. at 940, 857 N.W.2d at 828.
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Cite as 311 Neb. 835are actionable. 47 The Court explained that there is not a
“­wholesale defamation exemption for anything that might be
labeled ʽopinion.’” 48 Even if the speaker states the facts upon
which the speaker bases his or her opinion, if those facts are
either incorrect or incomplete, or if his or her assessment of
them is erroneous, the statement may still imply a false asser-
tion of fact. 49
[18] Thus, shortly after the high court’s explanation, this
court recognized that language must be evaluated in its
broader context to assess whether a reader would have under-
stood the allegation to be a statement of fact. 50 As we then
stated, in determining whether a statement implies a prov-
ably false factual assertion, both the language of the state-
ment and the context in which the statement was made must
be examined. 51
[19] To distinguish fact from opinion in a defamation claim,
courts apply a totality of the circumstances test. Relevant fac-
tors 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. 52
[20,21] Context is important to whether an ordinary reader
would view a statement as one of fact or opinion. 53 In addi-
tion to the content of the communication, a court looks to
the knowledge, understanding, and reasonable expectations
47
See Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S. Ct. 2695, 111 L.
Ed. 2d 1 (1990).
48
See id., 497 U.S. at 18. See, also, Wheeler v. Nebraska State Bar Assn.,
supra note 43.
49
Milkovich v. Lorain Journal Co., supra note 47.
50
See Wheeler v. Nebraska State Bar Assn., supra note 43.
51
Id.
52
Steinhausen v. HomeServices of Neb., supra note 44.
53
Id.
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Cite as 311 Neb. 835of the audience to whom the communication was directed,
taking cues from the broader setting in which the statement
appears. 54 Words, particularly the pejorative ones, often have
both a literal and figurative meaning. 55 As noted, whether the
language is hyperbolic is relevant to distinguishing fact from
opinion. 56 Rhetorical hyperbole—language that, in context,
was obviously understood as an exaggeration, rather than a
statement of literal fact—is not actionable. 57
With these principles in mind, we turn to Choice’s argu-
ments, some of which appear only in the summary of argument
portion of its brief. As best we can discern, its main argument
seems to be that the district court failed to view Donner’s
review in its totality. However, we apply de novo review to the
question of whether a statement is defamatory. Thus, it matters
not how the trial court analyzed the review if it reached the
right result. 58
Choice argues Donner’s statements of fact that were undis-
putedly true should be considered defamatory, because it
did not need to prove malice. Choice contends that a plain-
tiff only needs to prove malice if it is a public figure. But
Donner’s motion for partial summary judgment also placed
her affirmative defense before the court. And as we recognized
above, by statute truthful statements are not actionable unless
made maliciously. 59
Choice also argues that Donner’s review was defamatory,
because she provided insufficient context for their inter­actions.
In this regard, Choice argues that Donner failed to inform
54
Id.55
Id.56
Id.57
Id.58
See Zawaideh v. Nebraska Dept. of Health & Human Servs., supra
note 26.
59
See JB & Assocs. v. Nebraska Cancer Coalition, supra note 41. See, also,
§ 25-840.
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Cite as 311 Neb. 835the reader that she and Jackson “breached the agreement,”
“[k]nowing that they cited a false reason for refusing to close
[which] painted Choice and [Gillman] as violating a close
trusting relationship and taking advantage of a widow in a
moment of weakness.” 60 Choice then asserts that “[t]he aver-
age person reading [Donner’s review] would be left with an
impression that signing a [purchase] agreement with [Choice]
and [Gillman] could subject a person to being unfairly sued in
order for [C]hoice to ‘cash in’ on the agreement.” 61
Along the same line, Choice contends Donner’s invitation
to the reader to “contact” her for “additional information”
“implies that she has more defamatory information which she
is willing to share.” 62 This, Choice argues, “distinguishes her
[review] from protected opinion.” 63 We address this implication
argument along with the preceding contextual argument.
To determine whether Choice could prove the elements of
defamation, we must determine what statements, if any, by
Donner were false and defamatory. Because there is no evi-
dence in the record to prove that Donner published her review
with malice, her statements of fact that were undisputedly true
did not defame Choice. 64
Therefore, in analyzing Choice’s defamation claim, we
only consider Donner’s statements that were not proved to be
entirely undisputedly true. Such statements are as follows:
•  “Please be careful of any contract you sign with . . . Gillman
of Choice.”
•  “We the mistake of trusting him, signed a property con-
tract with him, and when [Jackson] suddenly passed away,
60
Brief for appellant at 36.
61
Id.62
Id. at 21.
63
Id.
64
See Steinhausen v. HomeServices of Neb., supra note 44. See, also,
§ 25-840.
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Cite as 311 Neb. 835[Gillman] wants to sue me, the widow, telling me this just a
few days after [Jackson’s] passing, hoping to cash in.”
•  “Please don’t trust this man.”
•  “Everything I have said is true, you can contact me through
my Facebook account if you need verification I can provide
both our lawyers and any other proof you need.”
In reviewing these statements, we consider the context of their
publication and look to the knowledge, understanding, and
reasonable expectations of the audience to whom the commu-
nication was directed, taking cues from the broader setting in
which the statement appears.
In these statements, Donner used hyperbolic language to
express her subjective skepticism of Gillman’s trustworthi-
ness. Donner then concluded her review by reaffirming that
her earlier statements of fact were undisputedly true and
offering to discuss the matter with the reader privately. An
ordinary reader would understand these statements to be
Donner’s opinions.
Donner’s opinions did not imply a false statement of fact.
Donner expressed her disfavor in Gillman for “want[ing] to
sue” her, but she never implied that she was being “unfairly
sued.” 65 Donner never claimed that she had no fault in failing
to close on the purchase agreement. Donner never alleged that
the only reason Gillman “want[ed] to sue” her was because she
was a widow. Nor did Donner imply that the reader would suf-
fer the same fate as her. Therefore, an ordinary reader would
not infer that he or she would be “unfairly sued” simply by
“signing a [purchase] agreement” with Choice. 66
We find Donner did not state or imply any false statements
of fact in the review. Therefore, the district court did not err in
finding that Choice could not prove the elements of its defa-
mation claim.
65
Brief for appellant at 21.
66
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Cite as 311 Neb. 835VI. CONCLUSION
The Act barred Choice’s nondefamation claims, because
Choice sought to recover compensation for performing prohib-
ited acts while not being a licensee. Additionally, Choice was
not defamed by the review, because it did not state or imply
a false statement of fact. We affirm the judgment of the dis-
trict court.
Affirmed.
Miller-Lerman, J., not participating.