Bojanski v. Foley

18 Neb.App. 929

798 N.W.2d 134

Randall BOJANSKI and Rhonda Bojanski, appellants,

v.Michael FOLEY and John Wyvill, appellees.

No. A–10–572.

Court of Appeals of Nebraska.

April 26, 2011.

Syllabus by the Court

1. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts, accepted as true, to state a claim to relief that is plausible on its face. In cases in which a plaintiff does not or cannot allege specific facts showing a necessary element, the factual allegations, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a reasonable expectation that discovery will reveal evidence of the element or claim.

2. Constitutional Law: Legislature: Immunity. The Nebraska Constitution, article V, § 22, provides for a waiver of sovereign immunity: The State may sue and be sued, and the Legislature shall provide by law in what manner and in what courts suits shall be brought.

3. Tort Claims Act. The State Tort Claims Act shall not apply to any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.

4. Political Subdivisions Tort Claims Act. The requirements of the Political Subdivisions Tort Claims Act apply where an individual is sued in his or her individual capacity, but is performing within the scope of employment.

5. Political Subdivisions Tort Claims Act: Tort Claims Act. The provisions in the Political Subdivisions Tort Claims Act should be construed in harmony with similar provisions in the State Tort Claims Act.

6. Tort Claims Act: Immunity: Waiver: Public Officers and Employees. While a state employee or officer may be allegedly sued individually, if he or she is acting within the scope of employment or office, the State Tort Claims Act still applies and provides immunity, unless such has been waived.

7. Statutes: Immunity: Waiver: Intent. Statutes that purport to waive the State's sovereign immunity must be clear in their intent and are strictly construed in favor of the sovereign and against the waiver.

8. Immunity: Waiver: Public Officers and Employees: Libel and Slander: Contracts. The State has not waived its sovereign immunity with respect to claims against its officers and employees who, while acting in the scope of their duties, are alleged to have committed libel, slander, or interference with contractual rights.

9. Tort Claims Act: Immunity: Invasion of Privacy. Invasion of privacy was not added to the list of torts exempted from the State Tort Claims Act, and therefore, sovereign immunity does not extend to the tort of invasion of privacy.

10. Pleadings: Notice. A party need not plead specific legal theories in the complaint, so long as the other side receives notice as to what is at issue in the case.

11. Invasion of Privacy: Liability. Any person, firm, or corporation which gives publicity to a matter concerning a natural person that places that person before the public in a false light is subject to liability for invasion of privacy if (1) the false light in which the other was placed would be highly offensive to a reasonable person and (2) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

12. Election of Remedies: Damages. The doctrine of election of remedies is applicable only where inconsistent remedies are asserted against the same party or persons in privity with such a party; however, a party may not have double recovery for a single injury or be made more than whole by compensation which exceeds the actual damages sustained.

13. Election of Remedies: Libel and Slander: Invasion of Privacy. Neb.Rev.Stat. § 20–209 (Reissue 2007) prevents multiple recoveries from a single publication, but it does not force a plaintiff to elect among libel, slander, and invasion of privacy with respect to the claim a plaintiff advances resulting from a single publication by the defendant.

14. Statutes. It is not within the province of a court to read a meaning into a statute that is not warranted by the legislative language.

15. Pleadings. An amended pleading supersedes the original pleading, and after the amendment, the original pleading ceases to perform any office as a pleading.

16. Constitutional Law: Actions. In order to assert a claim under 42 U.S.C. § 1983 (2006), the plaintiff must allege that he or she has been deprived of a federal constitutional right and that such deprivation was by a person acting under color of state law.

17. Property: Claims. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. The person must have more than a unilateral expectation of it. He or she must, instead, have a legitimate claim of entitlement to it.

18. Property: Claims. Property interests are not created by the federal Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

19. Constitutional Law: Property. An injury to reputation by itself is not a liberty or property interest protected under the 14th Amendment.

20. Constitutional Law: Property. The loss of outside private employment does not come within the ambit of a constitutionally protected property interest.

21. Constitutional Law: Property. The right to follow a chosen profession free from unreasonable governmental interference comes within both the liberty and property concepts of the 5th and 14th Amendments.

22. Constitutional Law. It is the right to pursue a calling or occupation, and not the right to a specific job, that is protected by the 14th Amendment.

23. Constitutional Law. The federal Constitution protects only against state actions that threaten to deprive persons of the right to pursue their chosen occupation.

24. Due Process. State actions that exclude a person from one particular job or job opening are not actionable in suits brought directly under the Due Process Clause.

25. Conspiracy: Words and Phrases. A civil conspiracy is a combination of two or more persons to accomplish by concerted action an unlawful or oppressive object, or a lawful object by unlawful or oppressive means.

26. Immunity: Waiver: Public Officers and Employees: Contracts: Conspiracy. If sovereign immunity has not been waived for interference with contractual rights, then such nonwaiver still prevails even though it is alleged that two or more government employees acted in concert.

27. Actions: Conspiracy. Civil conspiracy requires an agreement to participate in an unlawful activity and an overt act that causes injury, so it does not set forth an independent cause of action, but, rather, is sustainable only after an underlying tort claim has been established.

Raymond R. Aranza, of Scheldrup, Blades, Schrock, Smith & Aranza, P.C., for appellants.Jon Bruning, Attorney General, Michael J. Rumbaugh, Lincoln, and Thomas E. Stine, for appellees.SIEVERS and CASSEL, Judges, and HANNON, Judge, Retired.SIEVERS, Judge.

INTRODUCTION

The Autism Center of Nebraska, Inc. (ACN), is a non-profit organization providing services to people with autism and pervasive developmental disorders. Nebraska's Auditor of Public Accounts (State Auditor), Mike Foley, released an audit report that was highly critical of ACN and its principal officers, who then filed this suit against the State Auditor (and others) for libel and slander, among other claims. The district court for Douglas County, Nebraska, ultimately sustained motions to dismiss, and the plaintiffs appeal.

PROCEDURAL AND FACTUAL BACKGROUND

ACN was initially incorporated by Randall Bojanski and Rhonda Bojanski, a married couple. Randall served as the chief executive officer, and Rhonda served as the chief operations officer. On June 18, 2008, Foley released an “Investigation of the Autism Center of Nebraska” which was subtitled “ Rampant Improprieties Exposed ” (emphasis in original) and which we shall generally refer to as a “press release.” This release to the public and press was critical of a number of facets of ACN's business, noting that 98 percent of its funding was received from government sources and asserting that ACN's “ ‘operational style is an affront to the taxpayers of our State and exploits some of Nebraska's most vulnerable citizens who suffer from autism and developmental disabilities.” ’ Thereafter, on June 17, 2009, the Bojanskis filed suit in the district court for Douglas County against Foley; against John Wyvill, director of the Division of Developmental Disabilities of the Nebraska Department of Health and Human Services (DHHS); and against DHHS, the Governor, and the State of Nebraska.

On October 16, 2009, an amended petition was filed, but it advanced claims against only Foley and Wyvill, “[i]ndividually.” That amended petition contained substantially the same allegations as in the first petition and likewise attached and incorporated by reference Foley's press release of June 18, 2008. A second amended petition was filed against only Foley and Wyvill, “[i]ndividually,” on December 11, 2009—this is the operative pleading for purposes of this appeal, and we will hereafter reference it as “the complaint” and the remaining defendants, Foley and Wyvill, as “the defendants.” The press release of June 18, 2008, was incorporated therein by reference. The defendants filed a motion to dismiss on January 8, 2010, which the district court sustained in its entirety on May 10, and the lawsuit was “dismissed with prejudice.” The Bojanskis filed this timely appeal.

Because this matter was dismissed in the district court on the pleadings, there is no bill of exceptions...