Roth v. Wiese

716 N.W.2d 419

271 Neb. 750

Leslie ROTH, appellee, v. Gary WIESE, appellant.

No. S-04-1117.

Supreme Court of Nebraska.

June 16, 2006.

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David E. Copple and Michelle M. Baumert, of Copple & Rockey, P.C., Norfolk, for appellant.

David A. Domina and Timothy G. Himes, Sr., of Domina Law, P.C., Omaha, for appellee.

HENDRY, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

Leslie Roth brought this civil action against Gary Wiese, her paternal uncle, asserting several claims relating to sexual abuse allegedly committed by Wiese between 1967 and 1974. Roth sought damages for her own injuries and as the assignee of her husband's claim for loss of consortium. In Wiese's answer, he denied the claims and asserted various affirmative defenses. Prior to and during a jury trial in the district court for Cuming County, the court dismissed all claims except for Roth's claim that Wiese had intentionally inflicted emotional distress upon her by initiating certain communications in 2002. That claim was submitted to the jury. The jury returned a verdict in favor of Roth in the amount of $150,000, and the district court entered judgment accordingly. After the district court overruled his motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial, Wiese perfected this timely appeal, which we moved to our docket on our own motion pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995). We conclude that there was no reversible error and therefore affirm the judgment of the district court.

I. FACTS

Roth was born in Norfolk, Nebraska, in 1963 and resided there until leaving for college in another city after her 1981 high school graduation. At the time of trial and for several years prior, Roth lived and worked in La Crosse, Wisconsin, with her husband, Steve Roth, their child, and her two children from a previous marriage. Wiese, who resides in Wisner, Nebraska, is the brother of Roth's father, who resides in Norfolk. Wiese is approximately 10 years older than Roth.

Roth testified that in 1967, when she was 4 years old, Wiese began sexually assaulting her during visits to her grandparents' home in Wisner. She testified that these attacks occurred 150 to 200 times and continued until she was 10 or 11 years old and strong enough to resist. Wiese was approximately 14 years old when the assaults began. Roth testified that Wiese threatened her during the assaults, stating that if she fought, "he'd make it hurt more," and that if she reported the assaults to her grandparents, they would hate her, call her a liar, and never want to see her again. She testified that she did not tell anyone of the assaults at the time because she feared Wiese. Roth stated that during her adult life, she had only limited contact with Wiese.

In 1998, Roth told her psychotherapist Monica Lazere of the attacks. At the time, Roth was seeing Lazere for counseling related to her first marriage, which had ended in divorce. Lazere had diagnosed Roth with dysthymia, which she described as "`longstanding depression of less intense proportion than clinical depression, but definitely always a black cloud that is there.'" Roth testified that the "secret was eating [her] up inside," so she told Lazere about it because she wanted to "get some help." Lazere saw Roth once in December 1997 and 15 times in 1998, and the sexual abuse issue came up during the latter sessions. Lazere was prepared to change the focus of treatment to work with the issue, and they began some treatment. However, the treatment was discontinued because Roth indicated that she did not want to deal with the sexual abuse issue and "`felt okay.'" Roth told her future husband, Steve, about the assaults in approximately February 1999.

While her father was visiting her home in Wisconsin in late 2001, Roth told him of the assaults, because she had learned in therapy that she needed to tell the people that she should have told at the time of the assaults in order to help her heal. When he returned to Nebraska, Roth's father contacted law enforcement authorities in Cuming County and reported Roth's allegations against Wiese.

On April 27, 2002, Wiese telephoned Roth at her home in Wisconsin. According to Roth, when she answered the telephone, Wiese said, "`This is your Uncle Gary calling and I want to know what the hell you told your dad.'" Roth testified that during this conversation,

Every threat that he ever made to me was repeated about what would happen to me if I told what he had done to me. He said — he told me that I'd be in trouble, that I'd be called a liar, that I would get it, that he'd make me regret it.

Roth stated that Wiese was very angry and spoke in an intimidating tone. She testified that he said, "`I told you to keep your mouth shut. What the hell do you think you're doing? What do you open your mouth for now after all these years?'" Roth testified that Wiese also told her that he knew she had told her father because the sheriff had been investigating him for sexual assault. Roth told Wiese never to call her again.

Roth testified that she was very afraid after the telephone call and that it brought back all the threats Wiese had ever made to her, so that "now I live with the threats, and I live in fear that he's going to get me, that no one will believe me, that I'll be the liar, that he'd hurt me." After the call, she was afraid that Wiese was going to come to her house and harm her or her children.

In approximately May 2002, Roth received a letter from Wiese. In this letter, he stated that he was "sorry for what I did to you those 30+ years ago." He also stated that he was going to be removing himself from the family, and he requested that if she had "any other demands" of him she should "inform [him] in writing." In July, Roth received another letter and a card from Wiese. Enclosed in the card was a check for $1,000. The letter requested that she accept the check "to help in your healing proccess [sic]. Hopefully some day you will be able to forgive me. Please." Roth had never received a card or a gift of money from Wiese in the past. On the advice of counsel, Roth cashed the check.

On July 22, 2002, Roth's lawyer sent a certified letter to Wiese. The letter stated that in order to avert the commencement of a lawsuit against him, Wiese was to sign an agreement waiving the statute of limitations and agree to pay Roth $125,000. On July 23, Wiese left a voice message on the Roths' answering machine. The message stated:

Yeah, this message is for Leslie. This is her uncle Gary in Wisner. I got your letter from your lawyer today. Yeah, and I didn't know it was so easy as all it would take is $125,000 to satisfy you. Uh, why didn't you sue for about ten million cuz I'm not paying you that $125,000. Uh, go ahead and sue me and uh, here's a little story for you that our [pastor] always told us. Uh, cuz I'm sure that $125,000 ain't gonna make everything all right for ya. Ya know there was this married lady and this guy asked her if he [could] sleep with her for a million dollars and she said why of course. Then he asked her to sleep with [him] for a dollar and she said well what kind of woman do you think I am? I wouldn't sleep with you for a dollar. He said well we know what kind of woman you are. We're just trying to establish a price. So maybe ya oughta think about that, ya know, as for $125,000 everything's gonna be just fine with ya. Well I don't think so. So take me to court and sue me. I'm willing to go. Good bye.

Roth testified that she found the message shocking, hideous, degrading, insulting, and berating. Her husband, Steve, was irate, and he immediately called the number that Wiese had called from and left a message telling Wiese never to call again.

Later that day, Wiese left three additional messages on the Roths' answering machine. The first told Steve to be a "real man" and call Wiese back. The second, recorded just minutes later, stated:

Yeah, Steve, Gary again. You are right. There is somebody sick and it's not me and she needs help bad. But at least I admit I made a mistake 35 years ago and uh, it got corrected back then. At least I'm not ruining young girls' lives today like Leslie and her dad have done to my wife's family so if you've got any complaints, I wish you'd hurry up and get this thing into court and sue me so we can drag everybody into court and get this thing settled because I would like to get on [with] my life with my wife and daughter. And if you don't want to get on with your life, that's fine with me. But at least let us get on with ours so get this thing into court, get me sued, and let's get this thing settled once and for all. Thank you much [sic] for your time.

The third message was left approximately 2 hours later:

Yeah, Steve, ya there? Pick up. (long pause) Well since you won't pick up Steve, I guess, you can tell your wife to call her father and tell him he should be real proud of himself for what he's done to my wife's family and their three little girls out in Wisconsin. You think you've got explaining to do, I figured you'd already talked to them about what an asshole I was. So they got three little girls out there that uh, they gotta explain to for something that they shouldn't have to be explaining to because I got a . . . cuz Leslie's got a dad that ruined their three lives so I . . . tell Leslie to call him and tell him to be real proud of himself. Thank you very much. (long pause) Oh yeah Steve, by the way, I was a juvenile when this happened. I got a half an excuse. I don't know what your wife and her father's excuse is.

Roth testified that these contacts from Wiese brought memories of everything he had done to her since she was 4 years old ...