Thompson v. Johnson , 299 Neb. 819 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/29/2018 11:13 AM CDT
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
THOMPSON v. JOHNSON
Cite as 299 Neb. 819
K im M. Thompson, appellant, v.
A aron M. Johnson and Shawna
L. Johnson, appellees.
___ N.W.2d ___
Filed May 4, 2018. No. S-17-445.
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 those facts
and that the moving party is entitled to judgment as a matter of law.
2. ____: ____. 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. 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.
4. Torts: Employer and Employee. Factors to consider in determining
whether interference with a business relationship is “improper” include:
(1) the nature of the actor’s conduct, (2) the actor’s motive, (3) the
interests of the other with which the actor’s conduct interferes, (4) the
interests sought to be advanced by the actor, (5) the social interests in
protecting the freedom of action of the actor and the contractual interests
of the other, (6) the proximity or remoteness of the actor’s conduct to
the interference, and (7) the relations between the parties.
5. Torts: Liability. A person does not incur liability for interfering with
a business relationship by giving truthful information to another. Such
interference is not improper, even if the facts are marshaled in such a
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THOMPSON v. JOHNSON
Cite as 299 Neb. 819
way that they speak for themselves and the person to whom the infor-
mation is given immediately recognizes them as a reason for breaking a
contract or refusing to deal with another.
6. Summary Judgment: Proof. Once the moving party makes a prima
facie case, the burden shifts to the party opposing the motion to produce
admissible contradictory evidence showing the existence of a material
issue of fact that prevents judgment as a matter of law.
7. Appeal and Error. An appellate court is not obligated to engage in an
analysis which is not needed to adjudicate the controversy before it.
Appeal from the District Court for Douglas County, Horatio
J. Wheelock, Judge, on appeal thereto from the County Court
for Douglas County, Susan M. Bazis, Judge. Judgment of
District Court affirmed.
Joy Shiffermiller and Abby Osborn, of Shiffermiller Law
Office, P.C., L.L.O., for appellant.
Damien J. Wright, of Welch Law Firm, P.C., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, and Stacy, JJ., and
Luther and O’Gorman, District Judges.
Luther, District Judge.
INTRODUCTION
This appeal arises from a lawsuit filed by Kim M. Thompson
(Kim) in which she alleged that Aaron M. Johnson and Shawna
L. Johnson tortiously interfered with her business relationship
with her employer, Millard Public Schools (MPS). The county
court for Douglas County granted Aaron and Shawna’s motion
for summary judgment, and the district court for Douglas
County affirmed. Kim now appeals to this court. Kim asserts,
in pertinent part, that the evidence shows a genuine issue of
material fact concerning whether interference by Aaron and
Shawna was justified. We conclude that the undisputed facts
show that Aaron’s and Shawna’s actions were justified, because
they provided truthful information to MPS. Therefore, we
affirm the district court’s order.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
THOMPSON v. JOHNSON
Cite as 299 Neb. 819
BACKGROUND
Parties
The undisputed evidence shows that Kim and Aaron met
through their work with MPS. In her position as a project man-
ager employed by MPS, Kim organized construction projects
within the district. Aaron worked on construction projects for
MPS as an independent contractor. At all times relevant to this
appeal, Aaron was married to Shawna and they had children
attending MPS. In October 2011, Kim and Aaron began an
extramarital affair.
October 2012 Suspension
In October 2012, Shawna learned of the affair between Kim
and Aaron. Aaron ended the affair and informed MPS that he
would no longer work with Kim. Following an investigation,
MPS discovered that Kim had used MPS’ computers “to com-
municate inappropriate messages and pictures” with Aaron, in
violation of MPS policy. As a result, MPS suspended Kim for
8 days without pay.
Continued Contact and
M arch 2014 Directives
Kim and Aaron continued to have contact with each other.
On February 26, 2014, in response to an email from Kim in
which she stated that Aaron did not care about her, Aaron
wrote, “If I didn’t care about you at all, why would I have ever
agreed to talk to you? . . . If I didn’t care and I wanted to go
into your boss and get you fired, and ruin your life, I could
have done it long ago.”
Not long afterward, new concerns about Kim’s job per­
formance prompted a meeting between her and MPS officials.
At the meeting on March 3, 2014, MPS officials addressed
the issue of an angry and loud telephone call that Kim had
conducted with her ex-husband in the workplace and allega-
tions that Kim had gone through documents on her supervi-
sor’s desk.
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THOMPSON v. JOHNSON
Cite as 299 Neb. 819
During the meeting process, Kim volunteered that she
was having issues with Aaron and Shawna. Kim stated to
MPS officials that in November 2013, Aaron had shown up
at her workplace demanding to speak to her and threaten-
ing to cause a scene. Kim told MPS officials that to process
her feelings after “good talks” with Aaron in the summer of
2013, she had painted a painting of her and Aaron and posted
it on Facebook, initially identifying the two by name. She
stated that when Aaron asked her to remove the painting,
she removed the identifying names, but she did not remove
the painting. Kim reported that this caused Aaron to threaten
to call her supervisor and jeopardize her employment. Kim
also told MPS officials that Shawna had been stalking Kim’s
Facebook page.
On March 7, 2014, MPS wrote a letter to Kim documenting
the topics discussed and the expectations communicated at the
March 3 meeting. In part, the letter stated:
ISSUE #5: The issue of your relationship with the
person who almost cost you your job (Aaron) came up
repeatedly . . . . This is related to the affair you had with
Aaron (a former contractor for the District) in 2012 that
was dealt with in your reprimand and suspension letter
from late 2012.
....
EXPECTATION: . . .
....
We discussed how your affair with Aaron almost cost
[you] your job before. Now, you appear to be escalating
a confrontation with Aaron and his wife by posting on a
public media page. . . . As we discussed, if you escalate
this conflict and that escalation impacts [the] workplace,
it is likely to lead to future discipline, up to and includ-
ing termination.
....
. . . Specifically, it is not our intention to take any
action if Aaron or his wife reacts irrationally to a post that
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THOMPSON v. JOHNSON
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is not about them. However, if your communications can
be reasonably interpreted as an escalation of that conflict
and that conflict disrupts the workplace, we may not be
able to support you.
Kim signed the document, acknowledging that she had
received it.
Further Contact Between Parties,
M arch to June 2014
On or about March 25, 2014, Shawna received a link from
“Lisa Johnson,” who claimed to be a friend of Kim’s. The link
invited Shawna to view a cloud account that contained over
200 documents showing communications between Kim and
Aaron, to demonstrate to Shawna “what has been happening
behind your back for the last year.” “Lisa Johnson” claimed
that she was able to access the information because Kim’s
password was easy to deduce. Shawna and “Lisa Johnson,”
who Shawna believed to be Kim, corresponded about the affair
on Facebook, and Shawna used the format to tell Kim not to
contact Aaron or Shawna again. On March 30, Aaron posted
on the “Lisa Johnson” Facebook page, telling Kim to cease
contact with him and his family.
On April 2, 2014, an attorney representing Aaron and
Shawna sent a letter to Kim, telling her not to contact them.
On April 9, an attorney for Kim sent a letter to Aaron and
Shawna’s attorney. The letter requested that Aaron not contact
Kim at any location, including her workplace.
On April 14 and 23, 2014, Kim sent text messages to Aaron
sarcastically praising Aaron’s relationship with Shawna and
expressing sadness over losing Aaron. On April 24, Shawna
sent a long email message to Kim, telling her to stop contact-
ing Aaron.
On April 28, 2014, Kim emailed Shawna an invitation to
“Find me on Facebook.” The email prompted Shawna to search
Facebook, which led her to discover a Facebook page for
“Kimberly Johnson.” The “Kimberly Johnson” page consisted
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THOMPSON v. JOHNSON
Cite as 299 Neb. 819
of long, indepth journal-style posts related to Kim’s affair with
Aaron. This content was viewable to the public. Kim made
similar posts on her “Kim Thompson” Facebook page. Kim
continued to post on the Facebook pages with comments and
questions specifically directed at Shawna.
On May 12, 2014, Shawna emailed Kim to arrange a meet-
ing between Aaron, Shawna, and Kim to resolve the issues
that had occurred. The meeting did not take place, but over
the course of 5 days, Shawna and Kim exchanged a series of
lengthy email messages, the tone of which ranged from vitri-
olic to sympathetic on both sides. Ultimately, Shawna asked for
no further contact from Kim and shut down the email account
that she had used to communicate with Kim.
Kim continued to post on her “Kimberly Thompson”
Facebook page with comments directed at Aaron and Shawna.
On May 31, 2014, Kim referenced Aaron and Shawna’s chil-
dren: “I burst out crying tonight just thinking about your boys
[I] grew to love from just your stories. I am SO sad. I know it
sounds crazy, but [I] feel like [I] lost them too.”
On June 2, 2014, Kim reported to MPS that Shawna had
posted on her Instagram account that Shawna had sched-
uled principal/parent meetings to discuss security concerns
for her children due to an employee. Kim informed MPS that
Aaron and Shawna had been “blocked” from her Facebook
account.
On June 5, 2014, in a post directed at Shawna, Kim stated,
“I do love your boys like my own, and I would never hurt
them intentionally.” Also on June 5, “Macy James” messaged
the “Kimberly Thompson” Facebook account and stated, “I
WILL follow through with the meetings scheduled this fall b/c
you are unstable and should not have access to my kids in any
way.” Other elements of the message suggested that “Macy
James” was likely Shawna.
On June 24, 2014, Kim sent a brief message to Aaron’s work
email account, calling him a “horrible person” and an “ugly
man” with “no heart or a conscience.” Aaron and Shawna
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THOMPSON v. JOHNSON
Cite as 299 Neb. 819
believed that this was the first time Kim had emailed that
particular account. Shawna was concerned that Kim may have
obtained the email address from MPS files for Aaron and
Shawna’s children, where the email address was listed as con-
tact information. Further, Shawna was concerned, because, due
to Kim’s employment, Kim had access to MPS buildings; and
Shawna thought it possible that Kim would attempt to involve
her children in the situation or make contact with them to pro-
voke a reaction from Aaron and Shawna.
July 2014 Termination
On July 2, 2014, Shawna emailed MPS to address the con-
cerns that she and Aaron had for the safety and privacy of their
children, whom Kim had not met. Shawna’s email summarized
the contact she and Aaron had with Kim beginning in 2012.
Shawna further stated:
Last week [Kim] emailed my husband’s business email
account . . . . The only way he or I can think she may
have gotten this email account is through our children’s
confidential information held by the district . . . .
. . . [W]e have sound reason to be concerned for
the well[-]being of our children as [Kim] has access
to all buildings in the district due to the nature of her
job as I understand it. We are also very concerned that
our privacy will inevitably be compromised so long as
[Kim] works for MPS and our kids attend MPS. We
are considering removing them from the district for this
reason . . . .
Shawna requested a meeting on the matter, but she did not
request any specific action relating to Kim. In an affidavit,
Shawna specifically disclaimed sending the email with the
intent of ending Kim’s employment.
Shawna’s email included a link to the “Kim Thompson”
Facebook page and offered to provide additional documen-
tation upon request. The same day, the director of human
resources for MPS called Shawna and asked for additional
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THOMPSON v. JOHNSON
Cite as 299 Neb. 819
documentation. Shawna provided printouts of several Facebook
postings, messages from Kim, and Shawna’s own handwritten
notes documenting her interactions with Kim.
During the resulting meeting with MPS on July 7, 2014,
Kim admitted inviting Shawna to view her Facebook page
and, except for some minor factual discrepancies, she admitted
to posting the majority of the material provided by Shawna.
MPS placed Kim on nondisciplinary, paid administrative leave
while MPS investigated the matter. MPS officials told Kim
not to have further contact with Aaron and Shawna until MPS
decided how to proceed.
On July 8, 2014, the day after the meeting, Shawna received
a notification from a social media website that Kim had
“repinned [one] of [Shawna’s] pins.” MPS officials subse-
quently learned of this notification, which they considered con-
trary to the no-contact directive they had given to Kim.
MPS officials decided to terminate Kim’s employment. At
a deposition, MPS’ director of employee relations explained
that MPS officials based the decision on “insubordination,
unprofessional conduct, just the continuation of the escalation
of the conflict where she continued to post things that made
it . . . uncomfortable with [Aaron and Shawna’s] kids being
in school as parents of the district, residents of the district,
just inappropriate conduct.” He also testified regarding why
Thompson’s employment was terminated in 2014 and not in
2012, when the affair first came to light:
Q. Why wasn’t [Kim] fired in 2012 when the affair was
first discovered?
A. . . . I recall the conversation being that she’s had
a fairly long tenure as a decent employee. Is there any-
thing we can do to save her where she might change her
behaviors? And at that point, it was thought there was a
reasonable probability of success was the consensus if we
allowed [Kim] to continue [her] job.
Q. And in 2014, there was not the same feeling?
A. Correct.
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THOMPSON v. JOHNSON
Cite as 299 Neb. 819
MPS officials offered Kim the option to resign in lieu of
termination of her employment. Kim opted to resign.
Litigation
On September 14, 2015, Kim filed a lawsuit against Aaron
and Shawna in the county court. She alleged, inter alia, a cause
of action based on the theory of tortious interference with
a business relationship. In part, she averred that Aaron and
Shawna had “committed numerous unjustified intentional acts
of interference in an attempt to cause [Kim] to lose her job at
[MPS]” and that such interference was done with the intent or
reasonably foreseeable effect of causing harm to Kim.
Aaron and Shawna filed a motion for summary judgment.
Following a hearing on the motion, consisting of the evidence
above, the county court granted summary judgment in favor of
Aaron and Shawna and dismissed Kim’s complaint, with preju-
dice. In part, the county court found that Aaron and Shawna
were justified in contacting MPS due to concerns for their
children and that Shawna’s email did not cause termination
of Kim’s employment. Instead, the county court determined
that Kim’s own conduct and continued contact with Aaron and
Shawna caused the termination.
Kim appealed the county court’s order to the district court.
After a hearing, the district court affirmed.
Kim now appeals to this court.
ASSIGNMENTS OF ERROR
Kim assigns, condensed and restated, that the county court
erred in failing to find a genuine issue of material fact that
precluded summary judgment against her claim of tortious
interference with a business relationship.
STANDARD OF REVIEW
[1,2] 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
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THOMPSON v. JOHNSON
Cite as 299 Neb. 819
as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law.1 In reviewing a summary judgment, an appel-
late 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.2
ANALYSIS
Kim appeals the order of the district court that affirmed
the county court’s order granting summary judgment in favor
of Aaron and Shawna. For the benefit of judges and practi­
tioners, we take this opportunity to note that, effective August
24, 2017, the Legislature modified Neb. Rev. Stat. § 25-1332
(Supp. 2017) to impose citation and argument requirements
regarding assertions of disputed facts on summary judg-
ment. But here, neither party assigns error based upon the
new procedures.
[3] This appeal turns on a single theory of recovery: tortious
interference with a business relationship. 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.3 On appeal, Kim disputes the county court’s find-
ings that no genuine issue of material fact existed concerning
whether Aaron’s and Shawna’s interference was unjustified
and whether such interference caused Kim to lose her job
with MPS.
1
Benard v. McDowall, LLC, 298 Neb. 398, 904 N.W.2d 679 (2017).
2
Id.
3
Recio v. Evers, 278 Neb. 405, 771 N.W.2d 121 (2009).
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THOMPSON v. JOHNSON
Cite as 299 Neb. 819
Whether Interference by A aron
and Shawna Was Unjustified
[4] To assist in determining whether interference is “unjus-
tified” under the third prong of the foregoing test, Nebraska
has adopted the seven-factor balancing test of the Restatement
(Second) of Torts.4 Under the Restatement’s general test, fac-
tors to consider in determining whether interference with a
business relationship is “improper” include: (1) the nature of
the actor’s conduct, (2) the actor’s motive, (3) the interests
of the other with which the actor’s conduct interferes, (4) the
interests sought to be advanced by the actor, (5) the social
interests in protecting the freedom of action of the actor and
the contractual interests of the other, (6) the proximity or
remoteness of the actor’s conduct to the interference, and (7)
the relations between the parties.5
[5] Ordinarily, we would use these factors to determine
whether interference is “improper” and, thus, “unjustified”
under our law.6 However, if the information provided is truth-
ful, the interference is not unjustified.7 We have expressly
stated, “[A] person does not incur liability for interfering
with a business relationship by giving truthful information to
another.”8 Such interference is not improper, even if the facts
are marshaled in such a way that they speak for themselves
and the person to whom the information is given immedi-
ately recognizes them as a reason for breaking a contract
or refusing to deal with another.9 When truthful information
provides the basis for a termination of a business relationship,
the resulting liability, if any, should rest on the party who
4
See, Sulu v. Magana, 293 Neb. 148, 879 N.W.2d 674 (2016), citing Recio
v. Evers, supra note 3; Restatement (Second) of Torts § 767 (1979).
5
Id.
6
See Sulu v. Magana, supra note 4.
7
Sulu v. Magana, supra note 4; Recio v. Evers, supra note 3.
8
Recio v. Evers, supra note 3, 278 Neb. at 421, 771 N.W.2d at 133.
9
Id.
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made an informed choice to terminate the relationship—not
the party who provided the facts upon which that decision
was based.10
Viewed in the light most favorable to Kim, the evidence
demonstrates that Aaron and Shawna conveyed truthful infor-
mation to MPS and that, therefore, such communication was
not unjustified. First, in 2012, Aaron informed MPS of his
affair with Kim. The entire record and Kim’s suit are based on
the truthfulness of that disclosure. Second, Shawna’s July 2,
2014, email to MPS officials raised Aaron’s and Shawna’s con-
cerns for the safety and privacy of their children. Shawna pro-
vided specific examples of Kim’s questionable behavior that
were either supported or undisputed by the record. Her email
also included a link to Kim’s “Kim Thompson” Facebook
page, and Shawna later provided additional documentary evi-
dence of Kim’s online activity to MPS. When MPS confronted
Kim with the documentation provided by Shawna, Kim admit-
ted to posting the material, except for a few minor factual
disputes. But the discrepancies noted by Kim did not establish
any genuine issue of material fact about the truthfulness of
Shawna’s disclosures to MPS.
Thus, because Aaron and Shawna deduced evidence that
their communications with MPS were truthful and therefore not
“unjustified,” they disproved an essential element of tortious
interference with a business relationship and made a prima
facie showing that they were entitled to summary judgment.
[6] Once the moving party makes a prima facie case, the
burden shifts to the party opposing the motion to produce
admissible contradictory evidence showing the existence of
a material issue of fact that prevents judgment as a matter of
law.11 Kim asserts that she presented evidence that Aaron’s and
Shawna’s communications with MPS were not based in truth,
thereby rebutting their position that those communications
10
Id.
11
Sulu v. Magana, supra note 4.
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were justified. She primarily attempts to raise factual disputes
about Aaron’s and Shawna’s beliefs relating to the source of
Aaron’s work email address and about their concerns regarding
the children that Shawna said prompted her July 2014 email to
MPS. We find no merit to Kim’s arguments.
Kim contends that Shawna’s email falsely claimed that
prior to the message Kim sent to Aaron’s work email address
in June 2014, Kim had not used that particular address. Kim
cites to the record and claims that she used Aaron’s work email
address in February 2014. However, the February 2014 email
address cited by Kim is different from the one she used in
June 2014; and the record does not reveal any other instance
of Kim’s sending messages to that address or receiving mes-
sages from it. Additionally, we note that Shawna’s email did
not categorically assert that Kim had accessed the children’s
records to obtain Aaron’s work email address, but, rather,
stated that the children’s records were the only source for the
information that Aaron and Shawna could surmise. The record
simply does not raise any dispute as to the truthfulness of
Aaron’s and Shawna’s professed beliefs about the source of
the email address.
Kim further attempts to discredit Shawna’s concern for
her children’s safety because Kim had never met the chil-
dren and because Shawna was aware, through the copious
documents disclosed to her, that Kim had expressed to Aaron
that she cared about the children. Similarly, Kim argues that
the evidence does not support concern for the children on
Aaron’s part, because he and Kim had previously corresponded
about the children and Kim’s potential relationship with them.
However, the record does not contradict the sincerity of the
concerns that Shawna attributed to herself and to Aaron. In fact,
the undisputed evidence demonstrates that Aaron and Shawna
had ample reason to be concerned. After the affair ended,
Kim made varied, time-consuming, and at times underhanded
efforts to engage Aaron and Shawna in intense discussions
about the affair and about Aaron and Shawna as individuals.
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These communications included references to Aaron and
Shawna’s children, to whom Kim had potential access through
her employment. Certainly, Aaron’s and Shawna’s communi-
cations with Kim contributed to escalating tensions with her.
But their participation does not negate the truthfulness of their
reports to MPS concerning their interactions with Kim.
Kim also tries to refute the veracity of Aaron’s and Shawna’s
concerns by citing their previous “threats” and actions to jeop-
ardize Kim’s employment. She specifically refers to Shawna’s
Instagram post, messages authored by “Macy James,” the
February 2014 email to Kim from Aaron, and Aaron’s attempts
to contact her at MPS. According to Kim, this evidence
reflects the intent to have Kim’s employment terminated. We
note that Shawna expressly denied that she intended to end
Kim’s employment by emailing MPS. Furthermore, we have
previously observed that while a malicious motive is a factor
which may be considered in determining whether interference
is unjustified, it is generally insufficient standing alone to
establish that fact; and in making that observation, we reiter-
ated that a party will not incur liability for the communication
of truthful information.12 While the evidence cited by Kim
may imply an underlying desire that Kim’s employment with
MPS end and while the information Shawna provided was
marshaled in a way that was damning to Kim, these factors do
not diminish the truthfulness of Aaron’s and Shawna’s com-
munications with MPS.
The factual disputes that Kim attempts to generate simply
are not issues of material fact. Having considered Kim’s argu-
ments while giving her the benefit of all reasonable inferences
deducible from the evidence, we discern no issue of material
fact concerning the truthfulness of the information Aaron and
Shawna provided to MPS.
In sum, Kim failed to meet her burden to produce admis-
sible contradictory evidence creating a material issue of fact
12
See Recio v. Evers, supra note 3.
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to rebut Aaron and Shawna’s prima facie case; and the district
court did not err in affirming the county court’s order granting
summary judgment in favor of Aaron and Shawna.
Whether Interference by A aron and
Shawna Caused H arm to K im
[7] Because we have concluded that Aaron and Shawna are
not liable to Kim based on their truthful communications with
MPS, thus defeating Kim’s claim, we need not consider Kim’s
contentions that those communications caused her harm.13 An
appellate court is not obligated to engage in an analysis which
is not needed to adjudicate the controversy before it.14
CONCLUSION
For the reasons stated above, we conclude that because
Aaron and Shawna provided truthful information to MPS about
Kim, they could not incur liability for interfering with Kim’s
business relationship with MPS. Therefore, the county court
did not err in granting Aaron and Shawna’s motion for sum-
mary judgment on Kim’s claim of tortious interference with a
business relationship, and the district court did not err when it
affirmed the county court’s ruling. Accordingly, we affirm the
district court’s order.
A ffirmed.
Funke, J., participating on briefs.
Wright, J., not participating.
13
See id.
14
Id.