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Steinhausen v. Homeservices of Nebraska, Inc.

Supreme Court of Nebraska

January 23, 2015

MATTHEW M. STEINHAUSEN, DOING BUSINESS AS STEINHAUSEN HOME INSPECTIONS LLC, APPELLLLANT,
v.
HOMESERVICES OF NEBRASKA, INC., ET AL., APPELLLLEES

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Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Affirmed in part, and in part reversed and remanded with directions.

AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED WITH DIRECTIONS.

Matthew M. Steinhausen, Pro se.

Shawn D. Renner, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellee Shelly J. Nitz.

Michael D. Reisbig and Brian D. Nolan, of Nolan, Olson & Stryker, P.C., L.L.O., for appellees HomeServices of Nebraska, Inc., and Woods Brothers Realty.

HEAVICAN, C.J., CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. WRIGHT, J., not participating.

OPINION

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[289 Neb. 928] Connolly, J.

I. SUMMARY

Shelly J. Nitz is a real estate agent affiliated with HomeServices of Nebraska, Inc. (HomeServices). Matthew M. [289 Neb. 929] Steinhausen is a home inspector who inspected a house that one of Nitz' clients owned. More than 2 years after the inspection, Nitz sent an e-mail to HomeServices real estate agents and employees stating that Steinhausen was a " [t]otal idiot." Steinhausen, proceeding pro se, sued Nitz and HomeServices, alleging claims of libel, false light invasion of privacy, and tortious interference with a business relationship or expectancy. The district court sustained Nitz' and HomeServices' motions for summary judgment, reasoning that a qualified privilege protected the e-mail and that the evidence failed to show that Steinhausen had a business relationship or expectancy with Nitz or HomeServices. We affirm the court's judgment as it relates to the claims asserted by Steinhausen in his personal capacity. Because Steinhausen's attempt to also prosecute this action for a business entity is a nullity, we reverse, and remand with directions to vacate the judgment as it relates to claims brought for the entity.

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II. BACKGROUND

1. Factual Background

HomeServices is a brokerage firm whose business includes real estate sales. HomeServices does business as HOME Real Estate and Woods Brothers Realty, both of which are trade names owned by HomeServices and " not corporate entities." Nitz is a real estate agent affiliated with HomeServices.

Steinhausen began performing home inspections in 1999. After operating the business as a sole proprietorship, Steinhausen formed Steinhausen Home Inspections LLC (SHI) in 2004. Steinhausen is the sole member of SHI and its registered agent. SHI's primary business is home inspections, but it also performs commercial property inspections and offers consulting services.

In 2008, Nitz represented the seller of a home in Seward, Nebraska. A potential buyer exercised her right to a home inspection, and Steinhausen performed the inspection. Nitz testified that some of the items in Steinhausen's report " were unquestionably beyond the scope of a typical home inspection." Nitz felt that Steinhausen's comments on " non-condition related items" were " likely to tear apart transactions when Nebraska Advance Sheets [289 Neb. 930] property condition was not a real issue, to the detriment of a seller."

HomeServices provides its real estate agents with access to a company e-mail network. The network uses " group email lists," or listservs, including the " HRE-HOTSHEET" and " WBR-HOTSHEET" lists (collectively the Hotsheets). The Hotsheets include the e-mail addresses of current HomeServices real estate agents and employees and are accessed through their individual e-mail accounts.

HomeServices' vice president stated that agents use the Hotsheets as a forum to share information and opinions on topics related to the real estate business:

It is common for HomeServices Sales Associates to use the Hotsheets to send emails to other HomeServices Sales Associates to obtain information, market properties, and discuss current issues or questions on which they share a common interest, for example, questions or comments about particular aspects of real estate transactions, availability of properties and developments, real estate rules, regulations and practices and how they relate to real estate transactions, or questions or comments about vendors who work in the real estate sales community.

Nitz averred that, in her experience, HomeServices agents use the Hotsheets to communicate amongst themselves their opinions of other Realtors and vendors in the real estate business.

On January 14, 2011, Nitz posted a reply to an e-mail on the Hotsheets with the subject " RE: Steinhausen inspections." Nitz' e-mail stated in its entirety: " He did an inspection in Seward for the agent that sold one of my listings. I will never let him near one of my listings ever again!!! Total idiot."

The record shows that at least two other HomeServices agents sent e-mails on the same subject to the Hotsheets before Nitz sent her e-mail. The author of the first e-mail stated, " IN MY OPINION," Steinhausen was not qualified to inspect residential structures. The author of the second e-mail stated that inspections performed by Steinhausen were poor and that Steinhausen addressed issues unrelated to structural soundness. [289 Neb. 931] After Nitz sent her e-mail, another HomeServices agent replied that Steinhausen was " not professional."

Nitz stated that she " did not have any specific facts in mind" when she wrote her e-mail. Nitz did " recall[] having a generally negative impression of . . . Steinhausen

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and the inspection he conducted" and used the phrase " 'total idiot'" to " express that generally negative opinion."

At some point in January 2011, Steinhausen received an anonymous letter in the U.S. mail that included a copy of Nitz' e-mail. Steinhausen testified that the letter had no return address and that he did not know who had sent the letter.

After requesting a retraction from Nitz, Steinhausen filed a complaint with the State Real Estate Commission in February 2011 alleging that Nitz' e-mail violated Neb. Rev. Stat. ยง 81-885.24(22) and (29) (Cum. Supp. 2010). Section 81-885.24 authorizes the commission to discipline real estate brokers who commit certain unfair trade practices, including, under subsection (22), " [m]aking any substantial misrepresentations" and, under subsection (29), " [d]emonstrating negligence, incompetency, or unworthiness to act as a broker . . . ." Nitz signed a consent order with the ...


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