Summary
The Nebraska Supreme Court affirmed summary judgment for Gary Young and the law firm Keating, O’Gara, Nedved & Peters in Mark Elbert’s claims for defamation, false light, and civil conspiracy. The court held that challenged attorney affidavits were properly admitted, and that statements in complaints submitted to the Nebraska Crime Commission and Bellevue Police Department were absolutely privileged because they concerned quasi-judicial proceedings. The court also concluded that the false light claim was subsumed by the defamation claim and that civil conspiracy required an underlying tort.
Topics
Practice areas
Questions Presented
- Whether the district court abused its discretion by admitting affidavits from appellees' attorneys over foundation and hearsay objections.
- Whether the appellees' statements in the Crime Commission complaints and Bellevue Police Department allegation form were absolutely privileged because they were made in connection with quasi-judicial proceedings.
- Whether Elbert's false light claim was subsumed in his defamation claim and therefore not separately actionable.
- Whether Elbert's civil conspiracy claim failed because he did not establish an underlying tort and did not preserve a tortious-interference theory for appeal.
Holdings
- The district court did not abuse its discretion by admitting the challenged affidavits. An objection based on insufficient foundation is a general objection, and reversal is unavailable unless the ground for exclusion was obvious or the evidence was inadmissible for every purpose.
- The affidavits were not inadmissible hearsay because they were offered to show the attorneys' knowledge, belief, and state of mind concerning the information provided by BPOA members, rather than to prove the truth of the underlying allegations.
- Informal complaints submitted to the Nebraska Commission on Law Enforcement and Criminal Justice involve quasi-judicial proceedings, and defamatory statements in those complaints are absolutely privileged when relevant to the proceedings.
- The allegation form submitted to the Bellevue Police Department also involved a quasi-judicial proceeding, so relevant defamatory statements in the form were absolutely privileged.
- When defamation and false light claims are based on the same statements, the false light claim is subsumed within the defamation claim and is not separately actionable; a separate false light claim requires a nondefamatory statement. Elbert's separate theory was also unpreserved because he did not present it to the district court.
- The civil conspiracy claim failed because conspiracy is not an independent tort and requires an underlying tort. Elbert also forfeited any tortious-interference theory by failing to present it to the district court.
Key quotations
“By definition, an out-of-court statement is not hearsay if the proponent offers it for a purpose other than proving the truth of the matter asserted.” (312 Neb. at 66)
“Absolute privilege attaches to defamatory statements made incident to, and in the course of, judicial or quasi-judicial proceedings if the defamatory matter has some relation to the proceedings.” (312 Neb. at 67)
“However, if a plaintiff asserts claims of both defamation 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.” (312 Neb. at 72)
“A “conspiracy” is not itself a separate and independent tort, but, rather, depends upon the existence of an underlying tort.” (312 Neb. at 73)
Factual background
Mark D. Elbert, the former chief of police for Bellevue, Nebraska, was the subject of a 72-to-1 no-confidence vote by Bellevue Police Officers Association members. A press release drafted by the appellees' law firm accused Elbert of dishonest and deceptive conduct, retaliation against union leaders, and derogatory comments toward women and racial minorities. The appellees later assisted with an internal Bellevue Police Department allegation form and two informal complaints to the Nebraska Commission on Law Enforcement and Criminal Justice alleging that Elbert instructed employees to lie and conceal information. Elbert sued for defamation, false light invasion of privacy, and civil conspiracy.
Procedural history
Elbert sued the appellees based on statements in a press release, an internal police-department allegation form, and complaints submitted to the Nebraska Commission on Law Enforcement and Criminal Justice. The district court admitted affidavits from appellees' attorneys over Elbert's objections and granted summary judgment, concluding that the defamation claim lacked evidence of actual malice or special damages, certain statements were absolutely privileged, the false light claim was subsumed in the defamation claim, and the conspiracy claim lacked an underlying tort. Elbert appealed, and the Nebraska Supreme Court affirmed.