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CHOICE HOMES v. DONNER

Cite as 311 Neb. 835

Choice Homes, LLC, appellant, v. Heidi Donner, 

individually and as Personal Representative 

of the Estate of Jeffrey B. Jackson, 

deceased, appellee.

___ N.W.2d ___

Filed June 24, 2022. No. S-21-572.

1. Summary Judgment: Appeal and Error. An appellate court affirms 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 the facts and that 

the moving party is entitled to judgment as a matter of law.

2. ____: ____. An appellate court reviews the district court’s grant of summary judgment de novo, viewing the record in the light most favorable 

to the nonmoving party and drawing all reasonable inferences in that 

party’s favor.

3. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

4. Real Estate: Sales: Agents. Pursuant to the Nebraska Real Estate 

License Act, any person collecting a fee or commission on the sale of 

real estate must be a licensed real estate broker or salesperson unless he 

or she meets one of the exceptions provided in the act.

5. Statutes. Statutory interpretation is a question of law.

6. ____. Statutory interpretation begins with the text, and the text is to be 

given its plain and ordinary meaning.

7. Statutes: Appeal and Error. An appellate court will not resort to interpretation of statutory language to ascertain the meaning of words which 

are plain, direct, and unambiguous.

8. Summary Judgment: Appeal and Error. In reviewing the district 

court’s grant of summary judgment, an appellate court views the pleadings and admitted evidence de novo.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/08/2022 09:07 AM CDT
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9. ____: ____. The grant of a motion for summary judgment may be 

affirmed on any ground available to the trial court, even if it is not the 

same reasoning the trial court relied upon.

10. Contracts: Real Estate. The Nebraska Real Estate License Act does 

not mandate that a person be compensated in a specific manner such as 

through a commission fee in a purchase agreement.

11. Contracts: Real Estate: Vendor and Vendee. If the owner of real 

estate enters into a contract of sale whereby the purchaser agrees to buy 

and the owner agrees to sell it and the vendor retains the legal title until 

the purchase money or some part of it is paid, the ownership of the real 

estate as such passes to and vests in the purchaser, and that from the date 

of the contract the vendor holds the legal title as security for a debt as 

trustee for the purchaser.

12. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

13. Libel and Slander: Negligence. A defamation claim has four elements: 

(1) a false and defamatory statement concerning the claimant, (2) an 

unprivileged publication to a third party, (3) fault amounting to at least 

negligence on the part of the publisher, and (4) either actionability of the 

statement irrespective of special harm or the existence of special harm 

caused by the publication.

14. Libel and Slander: Proof: Statutes. By statute, truth in and of itself is 

made a complete defense unless the plaintiff proves the statements were 

made with actual malice.

15. Libel and Slander. The question of whether a particular publication is 

defamatory is, in the first instance, a question of law for the court.

16. Libel and Slander: Proof. The threshold question in a defamation suit 

is whether a reasonable fact finder could conclude that the published 

statements imply a provably false factual assertion.

17. Constitutional Law: Libel and Slander. Statements of fact can be 

defamatory whereas statements of opinion—the publication of which is 

protected by the First Amendment—cannot.

18. Libel and Slander: Proof. In determining whether a statement implies a 

provably false factual assertion, both the language of the statement and 

the context in which the statement was made must be examined.

19. Constitutional Law: Libel and Slander. To distinguish fact from 

opinion in a defamation claim, courts apply a totality of the circumstances test. Relevant factors include (1) whether the general tenor of 

the entire work negates the impression that the defendant asserted an 

objective fact, (2) whether the defendant used figurative or hyperbolic 
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language, and (3) whether the statement is susceptible of being proved 

true or false.

20. Libel and Slander. In addition to the content of the communication, a 

court looks to the knowledge, understanding, and reasonable expectations of the audience to whom the communication was directed, taking 

cues from the broader setting in which the statement appears.

21. Actions: Libel and Slander. Rhetorical hyperbole—language that, in 

context, was obviously understood as an exaggeration, rather than a 

statement of literal fact—is not actionable.

Appeal from the District Court for Douglas County: Shelly 

R. Stratman, Judge. Affirmed.

Christian R. Blunk, of Harris & Associates, P.C., L.L.O., and 

Douglas W. Ruge for appellant.

William N. Beerman and Patrick M. Flood, of Pansing, 

Hogan, Ernst & Bachman, L.L.P., for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

Choice Homes, LLC (Choice), appeals from an adverse 

summary judgment. Most of its claims stemmed from two 

failed purchase agreements—where it attempted to buy real 

estate (the property) from the owners and then sell it to the 

buyers. After the closing failed, the buyers purchased the property directly from the owners. Choice sued for money damages 

on the purchase-related claims and on a defamation claim for 

an online review posted by one of the buyers. The district court 

found that the Nebraska Real Estate License Act 1 (the Act) 

barred Choice’s claims regarding the failed transaction and that 

the review contained only opinions and undisputedly true factual statements. Finding no reversible error, we affirm.

1 See Neb. Rev. Stat. §§ 81-885.01 to 81-885.55 (Reissue 2014 & Cum. 

Supp. 2020).
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II. BACKGROUND

Before detailing the events underlying this appeal, we provide context by describing the property and identifying the 

persons involved.

1. Context

(a) Property

The property features a residential home that sits on a slope 

and abuts a river. Historically, the property suffered from erosion issues. Periodically, the property’s slope would “collapse.” 

Occasionally, since 1993, an engineering company conducted 

soil sample studies to monitor the property’s erosion.

Around 2008, the slope behind the residential home suffered 

a significant collapse that required repairs. The engineering 

company conducted another soil sample study on the slope and 

proposed a plan to “rehab” the slope in 2009.

Following the study, the property’s slope was regraded. 

However, the engineering company did not conduct another 

soil sample study after the slope was repaired.

(b) Persons

(i) Choice

Choice is a construction contractor that buys real estate and 

constructs residential homes. Often, Choice works with clients 

to purchase real estate and build a “custom” residential home 

on it.

Choice was owned by two individuals—Jason Gillman and 

Chad Bumsted. Choice claimed that Gillman and Bumsted 

were its only employees, because it delegated all its construction work and “office work” to subcontractors. None of 

Choice’s employees were licensed real estate brokers, licensed 

associate brokers, or licensed salespersons. (For convenience, 

we refer to licensed real estate brokers, licensed associate brokers, and licensed salespersons collectively as “licensees.”)

During the relevant events, Gillman served as Choice’s 

primary representative. The vast majority of Choice’s conduct 
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occurred through Gillman, acting on its behalf. For instance, 

Gillman negotiated with the owners and buyers, signed legal 

documents, and made representations on behalf of Choice. 

Bumsted played only a minor role, by corresponding with third 

parties through email.

(ii) Owners

Alan and Carol Parsow (collectively the owners) owned the 

property. They were not named as parties in Choice’s complaint, but their conduct is pertinent to the instant appeal. The 

record does not show whether the owners were deposed or 

otherwise involved in any discovery proceedings.

(iii) Buyers

Heidi Donner and Jeffrey B. Jackson (collectively the buyers) sought to purchase the property. At the time of the events 

preceding Choice’s lawsuit, Jackson was Donner’s husband. 

The buyers had previous interactions with Gillman. They were 

Gillman’s neighbors; he socialized with them, sharing drinks 

together and parking his motor home in their “tailgate” location during Nebraska football games. Jackson passed away 

in January 2019—less than a month after the buyers purchased the property from the owners, but before Choice filed 

its complaint.

2. Timeline of Events

Because the district court decided the case by summary 

judgment, we summarize the events in the light most favorable 

to Choice.

(a) Negotiations

In 2018, Choice discovered the owners were considering 

selling the property and commenced negotiations with them. 

Choice entered into an oral agreement with the owners—where 

if “[Choice] found a buyer interested in [the property, the 

owners] would execute a purchase agreement and sell [it] to 

[Choice] for [a set price].”
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Soon after, Gillman approached the buyers, proposing that 

they purchase the property from Choice. Gillman showed the 

property to the buyers multiple times.

On September 6, 2018, Jackson and Gillman communicated via text message regarding the condition of the property. 

(Throughout this opinion, we quote Jackson’s and Gillman’s 

text messages without correcting grammatical errors.) Jackson 

asked, “Are you aware that. [The property] had erosion problems in the past[?]” Gillman responded, “Yea it was over 10 

years ago my wife’s [family’s grading company] did all the 

grading and it is more solid than any lot up there. Also [the 

engineering company] confirmed everything it’s all good.” 

Gillman’s text seemed to be referencing the soil sample study 

conducted after the property’s slope collapsed, but before it 

was regraded.

One day after Jackson and Gillman’s conversation via text 

messages, the buyers agreed to purchase the property from 

Choice. Choice executed two separate purchase agreements on 

the same day—one with the owners and one with buyers. In 

one agreement, Choice agreed to purchase the property from 

the owners for $750,000; in the other, it agreed to sell the property to the buyers for $1.3 million. The terms of both purchase 

agreements set the closing date of October 31, 2018, through 

an escrowed transaction. The purchase agreement also required 

the buyers to provide Choice an additional $70,000 for “lost 

building fees,” because the buyers chose a different contractor to build a new home on the property. Ultimately, Choice 

expected to profit by $620,000 from the transaction.

(b) Before Closing

Following the parties’ signing their respective purchase 

agreements, each party began to complete their contractual 

duties to close on the property.

Choice and the owners completed most of their contractual 

obligations under their purchase agreement. The owners completed a seller disclosure statement, as required by Neb. Rev. 

Stat. § 76-2,120 (Reissue 2018), which disclosed the previous 
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erosion issues. Choice also obtained a loan to purchase the 

property from the owners.

However, the events differed between Choice and the buyers. Choice failed to complete its contractual obligations, and 

the buyers ultimately chose not to purchase the property.

Choice never provided a current title insurance commitment 

or a complete abstract of title to the buyers, as required under 

the purchase agreement. Choice directed a third party to prepare and deliver these documents to the buyers. However, the 

buyers denied receiving them.

Additionally, Choice never completed its own seller’s disclosure statement. Choice provided the owners’ seller disclosure statement to the buyers.

(c) Failure to Close

On October 5, 2018, Jackson texted Gillman and indicated 

that the buyers would not close on the property, claiming Choice 

did not disclose the erosion issues. Jackson stated, “I will not 

execute the contract as the erosion was not advised up front 

and I am very concerned[.]” Donner testified that Jackson was 

upset that Gillman did not disclose any information or reports 

on the property’s erosion history. Donner stated, “Most our 

information came from Carol Parsow about the erosion.”

Gillman responded to Jackson’s refusal to close by reaffirming his representation that the property no longer suffered from 

erosion issues. Gillman stated, “What I will call you this morning The ground is more secure than any ground up there. [The 

grading company] and [engineering company] did all the work 

like discussed[.]” However, Choice never sought to force the 

buyers to close on the property, because “there wasn’t a whole 

lot of communication after that point.”

Gillman claimed in his deposition that Alan Parsow communicated with him after the buyers told Choice that they 

would not purchase the property. Gillman testified that Alan 

Parsow stated:

[The owners were not] going to pursue [their purchase 

agreement] with [Choice] and make [it] close on [the 
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purchase agreement] because if [the owners] would have, 

[it] would have had to close because [it] had a [purchase 

agreement] to close with [the owners], and he basically 

said [the owners were not] going to pursue [the purchase agreement].

After Choice’s conversations with the owners, it never sought 

to enforce its purchase agreement with them, because “that was 

about it after that.”

Choice did not close on the property pursuant to either purchase agreement.

(d) Aftermath

In November 2018, the owners communicated with the buyers directly and inquired whether they would be interested in 

purchasing the property. Gillman attempted to interject Choice 

into the owners and buyers’ discussions to “try[] to keep the 

agreements between [it, the owners, and the buyers] alive.” 

However, the owners and buyers chose not to involve Choice 

in the discussions.

The owners sold the property to the buyers for $825,000 

on December 24, 2018. Choice was not involved in the sale. 

Jackson passed away on January 12, 2019.

Months later, Donner posted a negative “Google Review” of 

Gillman and “Choice Custom Homes” (the review). For convenience, we quote the review in full in the analysis section.

3. District Court

Choice sued Donner, both as an individual and in her capacity as the personal representative of Jackson’s estate (hereafter 

collectively Donner). It did not include the owners as parties in 

the action. We first summarize the pleadings and then turn to 

the arguments asserted on summary judgment.

(a) Complaint and Answer

Choice alleged that Donner committed fraud, tortiously 

interfered with its business expectation, breached their purchase agreement, breached their implied covenant to act in 
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good faith, and were unjustly enriched. Choice also alleged 

that it had been defamed by the review.

In Donner’s answer, she denied Choice’s claims. She 

asserted an affirmative defense that she was not liable for defamation, because her statements were true. Donner also asserted 

counterclaims against Choice for fraud and unjust enrichment. 

Donner did not join the owners as third-party defendants.

For convenience, we divide Choice’s claims into two 

overarching categories: (1) nondefamation and (2) defamation. The first category includes all of Choice’s claims other 

than its defamation claim. The latter includes only the claim 

for defamation.

(i) Nondefamation Claims

The crux of Choice’s nondefamation claims were that it 

suffered monetary damages from the buyers’ purchasing the 

property directly from the owners instead of through it. In 

Gillman’s deposition, he characterized Choice’s damages as 

“getting due what’s fairly due to [Choice] for finding the property and introducing the two parties together and finding [the 

buyers’] dream property for them and [the owners] to get out 

of [the property].” When asked “what prohibited [the buyers] 

from reaching a separate deal with [the owners]” after Choice 

failed to close on the property, Gillman responded, “Ethical. 

Being ethical. Making sure that you’re fair to all parties 

involved. . . . [T]hey didn’t even know about each other. They 

didn’t know about the property. . . . [T]he ethical part of this 

as far as like just taking somebody out of an agreement . . . .” 

Gillman asserted that the buyers could never buy the property 

from the owners at any time, because “[Choice] had the agreement with them, so the ethical and right thing to do is to honor 

their agreement if they’re going to buy [the property].”

(ii) Defamation Claim

Even though the review described actions of Gillman, 

Choice asserted that the statements damaged its reputation 
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and resulted in a decline in its business opportunities, because 

Gillman interacted with the public on its behalf.

(b) Summary Judgment

Donner filed a “Motion for Partial Summary Judgment.” 

The motion addressed only Choice’s claims against Donner; it 

did not address Donner’s counterclaims against Choice.

(i) Donner’s Arguments

In support of Donner’s motion, she asserted that Choice’s 

claims were barred or unable to be proved through the evidence in the record. Donner characterized Choice’s role in the 

failed transaction as that of a real estate broker facilitating the 

sale of the property from the owners to them. Donner argued 

the Act barred Choice—a nonlicensee—from recovering compensation for facilitating the sale of the property. Donner also 

argued that her statements in the review did not constitute defamation, because they were opinions.

(ii) Choice’s Arguments

Choice opposed Donner’s motion for summary judgment. 

Choice argued that the Act did not bar its nondefamation 

claims, because “‘the present case does not involved [sic] 

compensation paid by [the owners] through a listing for the 

location of a buyer.’” Choice also contended that this was not 

“‘a situation where someone is acting as a broker where a commission would be paid for acting as a broker in negotiating a 

transaction between a buyer and seller.’” Alternatively, Choice 

argued that its conduct fell under § 81-885.04(1)—an exception to the Act—and therefore, its nondefamation claims were 

not barred. 2

(c) Ruling

The court “granted in full” Donner’s motion for summary judgment and dismissed Choice’s complaint. The court 

found that the Act barred Choice’s nondefamation claims and 

2 See § 81-885.04(1).
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that Choice was not defamed by the review. The court did not 

address or dispose of Donner’s counterclaims in this order. We 

summarize its reasoning regarding the respective categories.

(i) Nondefamation Claims

a. Barred by the Act

The court ruled that the Act barred Choice’s nondefamation 

claims, because, without being a licensee, it sought to recover 

compensation for performing services governed by the Act. 

The court looked beyond the “labels used by the parties, and 

instead focus[ed] on the substance of the parties’ actions.” The 

court found that Choice “‘for any form of compensation or 

consideration’ and ʽwith the intent or expectation of receiving the same from another,’ ‘negotiated . . . [the] sale, purchase[,] or option for any real estate or improvements thereon’ 

and ‘assist[ed] in procuring prospects’ within the meaning of 

[§ 81.885.01([2])].” 3

To support its findings, the court noted that Gillman testified in his deposition that he believed Choice suffered damages from not being compensated for brokering the sale of the 

property from the owners to the buyers. The court also cited 

Choice’s decision to not close on its purchase of the property 

after the buyers stated they would not close on their purchase 

of the property from it. Finally, the court highlighted that 

Choice did not complete its own seller’s disclosure statement: 

“Instead, like a broker, [Choice] passed along a [seller’s disclosure statement] completed by the owners . . . .”

b. Not Excepted by § 81-885.04(1)

The court was unpersuaded by Choice’s argument that its 

conduct fell under § 81-885.04(1). The court found that it 

was immaterial whether Choice obtained any ownership rights 

under the purchase agreement, because most of its conduct 

requiring a license occurred before it signed the agreement 

3 See § 81-885.01(2) (quoted by district court).
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with the owners. Further, the court noted that Choice negotiated the sale of the “full legal title” in the property—not just 

equitable title—and therefore, it “broker[ed] a larger interest 

than [it] ever arguably held.”

The court declined to consider Choice’s oral agreement with 

the owners. The court explained that Choice introduced this 

agreement for the first time in Gillman’s affidavit in opposition to Donner’s motion for summary judgment (Gillman’s 

affidavit). The court noted, however, that Gillman never discussed this agreement in his deposition. The court found that 

Gillman’s affidavit “proffered evidence alleging facts materially 

different concerning a vital issue, with the change being made 

to meet the exigencies of pending litigation.” Therefore, the 

court “discredited” Gillman’s affidavit, relying upon Momsen 

v. Nebraska Methodist Hospital. 4

c. Alternative Findings

Even though the court found that the Act barred Choice’s 

nondefamation claims, the court provided “[a]lternative [f]indings” to individually justify the dismissal of each nondefamation claim. But because we will not reach those findings, we 

need not summarize them.

(ii) Defamation Claim

Regarding Choice’s defamation claim, the court found that 

Choice could not prove it was defamed by the review, because 

Donner’s statements were not false statements of fact. First, the 

court noted that Donner alleged in her pleadings that her statements were true and that Choice did not present evidence that 

she published her statements with actual malice. 5 Therefore, 

the court stated, the statements of fact that were undisputedly 

true did not defame Choice.

4 Momsen v. Nebraska Methodist Hospital, 210 Neb. 45, 313 N.W.2d 208 

(1981).

5 See, Neb. Rev. Stat. § 25-840 (Reissue 2016); White v. Ardan, Inc., 230 

Neb. 11, 430 N.W.2d 27 (1988).
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Further, the court explained, the statements that could not 

be proved to be undisputedly true did not constitute defamation, because they were her opinions. Those statements, the 

court said, “[G]o to impressions of credibility, honesty, and 

trustworthiness — adjectives which are subjectively formed 

in an individual’s mind and are open to personal differences 

of opinion.”

4. Appeal

Following the dismissal of Choice’s complaint, Donner 

moved to voluntarily dismiss her counterclaims. The court sustained the motion. That order disposed of all remaining claims. 

We take this opportunity to remind trial courts that a recent 

statutory change requires a court rendering a judgment to sign 

“a single written document stating all of the relief granted or 

denied in an action.” 6 Thus, where a judgment results from a 

series of documents, as here, the last one should include all 

relief granted or denied in the action, including relief previously set forth in interlocutory orders.

Choice filed a timely appeal. We moved the appeal to 

our docket. 7

III. ASSIGNMENTS OF ERROR

Choice assigns, combined and restated, that the court erred 

in finding that (1) the Act barred its nondefamation claims; (2) 

it could not prove the elements of its nondefamation claims for 

(a) breach of contract, (b) breach of the implied covenant to 

act in good faith, and (c) tortious interference with a business 

relationship or expectancy; and (3) it could not prove the elements of its defamation claim.

IV. STANDARD OF REVIEW

[1,2] An appellate court affirms a lower court’s grant of 

summary judgment if the pleadings and admitted evidence 

6 Neb. Rev. Stat. § 25-1301(2) (Cum. Supp. 2020).

7 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts 

and that the moving party is entitled to judgment as a matter 

of law. 8 An appellate court reviews the district court’s grant of 

summary judgment de novo, viewing the record in the light 

most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. 9

[3] An appellate court independently reviews questions of 

law decided by a lower court. 10

V. ANALYSIS

1. Nondefamation Claims 

Barred by the Act

Choice argues that the district court erred in finding that the 

Act barred its nondefamation claims. Choice does not dispute 

that none of its employees were licensees. Rather, Choice 

asserts that the Act does not apply, because it never performed 

acts or rendered services prohibited by the Act or it was not 

subject to the Act pursuant to § 81-885.04(1).

[4] We have held that pursuant to the Act, any person collecting a fee or commission on the sale of real estate must be 

a licensed real estate broker or salesperson unless he or she 

meets one of the exceptions provided in the Act. 11 At this point, 

we recall specific provisions of the Act.

First, the Act prohibits lawsuits for compensation by nonlicensees. “No action or suit shall be instituted, nor recovery 

be had, in any court of this state by any person for compensation for any act done or service rendered, the doing 

8 Bogue v. Gillis, ante p. 445, 973 N.W.2d 445 (2022).

9 Id.

10 Nebraska Republican Party v. Shively, ante p. 160, 971 N.W.2d 128 

(2022).

11 In re Estate of Ronan, 277 Neb. 516, 763 N.W.2d 704 (2009).
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or rendering of which is prohibited under [the Act] to other 

than [licensees].” 12

Second, the Act broadly defines the term “broker”:

Broker means any person who, for any form of compensation or consideration or with the intent or expectation of 

receiving the same from another, negotiates or attempts to 

negotiate the listing, sale, purchase, exchange, rent, lease, 

or option for any real estate or improvements thereon, or 

assists in procuring prospects or holds himself or herself 

out as a referral agent for the purpose of securing prospects for the listing, sale, purchase, exchange, renting, 

leasing, or optioning of any real estate or collects rents 

or attempts to collect rents, gives a broker’s price opinion 

or comparative market analysis, or holds himself or herself out as engaged in any of the foregoing. Broker also 

includes any person: (a) Employed, by or on behalf of the 

owner or owners of lots or other parcels of real estate, 

for any form of compensation or consideration to sell 

such real estate or any part thereof in lots or parcels or 

make other disposition thereof; (b) who auctions, offers, 

attempts, or agrees to auction real estate; or (c) who buys 

or offers to buy or sell or otherwise deals in options to 

buy real estate. 13

Third, the Act further defines a broker, associate broker, 

or salesperson as any person “who, directly or indirectly for 

another, with the intention or upon the promise of receiving 

any form of compensation or consideration, offers, attempts, 

or agrees to perform or performs any single act described in 

[§ 81-885.01(2)], whether as a part of a transaction, or as an 

entire transaction.” 14 This section also declares that “[c]ommitting a single act described in [§ 81-885.01(2)] by a person 

12 § 81-885.06.

13 § 81-885.01(2).

14 § 81-885.03(1).
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required to be licensed under [the Act] and not so licensed 

shall constitute a violation of [the Act].” 15 For convenience, we 

refer to the acts defined in §§ 81-885.01(2) and 81-885.03(1) as 

“prohibited acts” throughout the remainder of this opinion.

In order to determine whether the Act barred Choice’s nondefamation claims, we must begin with two questions. Did 

Choice perform a prohibited act? And, if so, did Choice do so 

with the intent to or upon the promise of receiving any form 

of compensation or consideration? Then, we must determine 

whether the Act’s exception for acts “as owner . . . with reference to property owned” by Choice applies here. 16

[5-7] Answering these questions requires statutory interpretation, which is guided by well-settled principles. Statutory 

interpretation is a question of law. 17 It begins with the text, 

and the text is to be given its plain and ordinary meaning. 18

An appellate court will not resort to interpretation of statutory 

language to ascertain the meaning of words which are plain, 

direct, and unambiguous. 19

We digress momentarily to note that, unlike the district 

court, we will consider Gillman’s affidavit in our analysis. 

This affidavit was admitted into evidence. The court below 

applied Momsen to disregard it. 20 Although Choice does not 

specifically assign error to the court’s application of Momsen, 

we assume, without deciding, that Gillman was a nonparty 

witness. 21 At oral argument, Donner conceded that Gillman 

was not deposed pursuant to the rule permitting identification of an organization as the deponent. 22 This court has 

15 Id.

16 See § 81-885.04(1).

17 In re Estate of Severson, 310 Neb. 982, 970 N.W.2d 94 (2022).

18 Nebraska Republican Party v. Shively, supra note 10.

19 Id.

20 See Momsen v. Nebraska Methodist Hospital, supra note 4.

21 See id.

22 See Neb. Ct. R. Disc. § 6-330(b)(6) (rev. 2022).
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repeatedly declined to extend Momsen 23 to instances of changed 

testimony by nonparty witnesses, 24 and it is not necessary to do 

so here.

[8,9] In reviewing the district court’s grant of summary 

judgment, an appellate court views the pleadings and admitted evidence de novo. 25 The grant of a motion for summary 

judgment may be affirmed on any ground available to the 

trial court, even if it is not the same reasoning the trial court 

relied upon. 26

(a) Acts or Services Rendered

Choice asserts that it never performed any prohibited acts. 

Choice focuses upon the requirement in § 81-885.03(1) that a 

prohibited act must be performed “for another.” Choice argues 

that because it was a party to the transactions, it acted in its 

own behalf—not “for another.” For instance, Choice contends 

that it did not show the property to prospective buyers for 

another’s benefit. Choice claims it did so “in anticipation of 

purchasing the property and then reselling it to customers who 

wanted Choice to build a home on the property” instead. 27

We disagree.

Choice performed a plethora of prohibited acts for the owners and buyers. It

•procured prospective buyers for the owne

•solicited the sale of the property to the buye

•found the buyers’ “dream property for the

23 Momsen v. Nebraska Methodist Hospital, supra note 4.

24 See, Breeden v. Anesthesia West, 265 Neb. 356, 656 N.W.2d 913 (2003); 

Ketteler v. Daniel, 251 Neb. 287, 556 N.W.2d 623 (1996). See, also, 

Momsen v. Nebraska Methodist Hospital, supra note 4.

25 See Bogue v. Gillis, supra note 8. See, also, Rodriguez v. Nielsen, 259 

Neb. 264, 609 N.W.2d 368 (2000); MAPCO Ammonia Pipeline v. State Bd. 

of Equal., 242 Neb. 263, 494 N.W.2d 535 (1993).

26 Zawaideh v. Nebraska Dept. of Health & Human Servs., 285 Neb. 48, 825 

N.W.2d 204 (2013).

27 Brief for appellant at 24.
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•“introduce[d] the [owners and buyers

•“made [the buyers] aware that [it] would secure [the propert

under a separate agreement with the [owners] for conveyance 

to [the buyers] under the terms of the purchase agreement 

between [them],”

•negotiated the sale of the property, 

•assisted the owners in “get[ting] out of [the property

While Choice may have been motivated to act in its own 

behalf, the undisputed evidence shows that it performed these 

prohibited acts for the owners and buyers. Our statutes prohibit 

any unlicensed person (aside from those explicitly excepted 

in § 81-885.04) from negotiating, attempting to negotiate, or 

assisting in procuring prospects for the sale or lease of “‘any

real estate or improvements thereon.’” 28

(b) Compensation or Consideration

Choice asserts that it never expected to receive compensation from the owners or the buyers. Instead, Choice expected 

to “realize a profit when [it] resold the property to a third 

party.” 29 Choice argues that if it intended to be compensated by 

the owners or the buyers, the purchase agreements would have 

mandated that it be paid a commission fee.

This argument lacks merit. Choice expected to receive compensation under its oral agreement with the owners. Choice 

agreed to purchase the property from the owners for a set price 

if it “found a buyer interested in [the property].” Choice would 

then “realize a profit” 30 by reselling the property to a buyer

at a higher price. In essence, Choice solicited the sale of the 

property and procured a buyer for the owners in exchange for 

the right to simultaneously purchase and sell the property for a 

$620,000 profit.

28 Ford v. American Medical International, 228 Neb. 226, 230, 422 N.W.2d 

67, 70 (1988) (quoting § 81-885.01(2)) (emphasis in original).

29 Brief for appellant at 24.

30 Id.
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[10] The Act does not mandate that a person be compensated in a specific manner such as through a commission 

fee in a purchase agreement. 31 All the Act requires is that 

a person—who is not a licensee—perform a prohibited act 

with the expectation that he or she will receive compensation 

from another. 32

(c) § 81-885.04(1)

The Act barred Choice’s nondefamation claims unless 

§ 81-885.04(1) applied. This statute mandates that the Act 

shall not apply to:

Any person, partnership, limited liability company, or 

corporation who as owner or lessor shall perform any of 

the acts described in subdivision (2) of section 81-885.01 

with reference to property owned or leased by him, her, 

or it or to the regular employees thereof, with respect 

to the property so owned or leased, when such acts are 

performed in the regular course of or as an incident 

to the management, sale, or other disposition of such 

property . . . . 33

Choice asserts that it owned the property, because it obtained 

equitable title to the property under its purchase agreement 

with the owners. Because it “owned” 34 the property, it argues, 

the Act does not apply here. We disagree, because it claims 

too much.

Choice does not claim that it obtained any ownership rights 

in the property other than equitable title. Choice also does not 

claim it obtained equitable title in the property before signing 

its purchase agreement with the owners.

[11] If the owner of real estate enters into a contract of sale 

whereby the purchaser agrees to buy and the owner agrees 

31 See, generally, § 81-885.01 et seq.

32 See id.

33 See § 81-885.04(1).

34 See id.
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to sell it and the vendor retains the legal title until the purchase money or some part of it is paid, the ownership of the 

real estate as such passes to and vests in the purchaser, and 

that from the date of the contract the vendor holds the legal 

title as security for a debt as trustee for the purchaser. 35 While 

the current version of § 81-885.04(1) does not define “property owned,” 36 its plain and ordinary meaning includes equitable title. 37

However, Choice fails to recognize that § 81-885.04(1) only 

applied to the prohibited acts that it performed while it owned 

the property. The statute only allowed Choice “as owner” 

to “perform any [prohibited act] with reference to property 

owned . . . by . . . it.” 38 The exception does not apply to prohibited acts that Choice performed before or after it owned 

the property.

Choice “owned” the property for less than 24 hours. Choice 

obtained equitable title in the property through its purchase 

agreement with the owners. However, later that day, Choice 

entered into its purchase agreement with the buyers, which 

transferred equitable title to them. 39 Choice had no other ownership interest in the property.

Choice performed multiple prohibited acts before and after 

it owned the property. Choice solicited the sale of the property, sought to procure a buyer, showed the property to the 

buyers, attempted to facilitate the sale of the property, and 

negotiated with the owners and buyers to “try[] to keep the 

agreements between [it, the owners, and the buyers] alive.” 

35 DeBoer v. Oakbrook Home Assn., 218 Neb. 813, 359 N.W.2d 768 (1984).

36 But see 2022 Neb. Laws, L.B. 892, § 2 (effective July 20, 2022). See, also, 

Neb. Const. art. III, § 27.

37 See Nebraska Republican Party v. Shively, supra note 10. See, also, 

DeBoer v. Oakbrook Home Assn., supra note 35.

38 See § 81-885.04(1).

39 See DeBoer v. Oakbrook Home Assn., supra note 35.
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Therefore, the court did not err in finding the Act barred 

Choice’s nondefamation claims.

2. Nondefamation Claims—

Alternative Findings

[12] Choice assigns that the court erred in finding that it 

could not prove the elements of its nondefamation claims. 

Because the district court correctly concluded that the Act 

barred Choice’s nondefamation claims, we need not address 

this assignment. An appellate court is not obligated to engage 

in an analysis that is not necessary to adjudicate the case and 

controversy before it. 40

3. Defamation Claim Fails

Choice assigns that the district court erred in finding it could 

not prove the elements of its defamation claim. Before summarizing its arguments, we quote the review, and then summarize 

the applicable law.

(Prior to this section of our analysis, we have referred to 

Donner collectively in her individual and representative capacities. In this section, we are referring to Donner only in her 

individual capacity.)

Donner’s review (which we quote exactly) stated:

Please be careful of any contract you sign with Jason 

Gillman of Choice Homes. He was a great neighbor to us 

for many years. He sat in the man cave with my husband 

at our place and they shared beers. We arranged for him 

to park his motorhome at Nebraska football games. We 

the mistake of trusting him, signed a property contract 

with him, and when my husband suddenly passed away, 

Jason wants to sue me, the widow, telling me this just 

a few days after his passing, hoping to cash in. Please 

don’t trust this man. Everything I have said is true, you 

can contact me through my Facebook account if you 

40 Preserve the Sandhills v. Cherry County, 310 Neb. 184, 964 N.W.2d 721 

(2021).
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need verification I can provide both our lawyers and any 

other proof you need.

[13,14] A defamation claim has four elements: (1) a false 

and defamatory statement concerning the claimant, (2) an 

unprivileged publication to a third party, (3) fault amounting to 

at least negligence on the part of the publisher, and (4) either 

actionability of the statement irrespective of special harm or 

the existence of special harm caused by the publication. 41

By statute, truth in and of itself is made a complete defense 

unless the plaintiff proves the statements were made with 

actual malice. 42

[15] The question of whether a particular publication is 

defamatory is, in the first instance, a question of law for the 

court. 43 As noted in the standard of review section, we review 

questions of law de novo.

[16,17] The threshold question in a defamation suit is 

whether a reasonable fact finder could conclude that the published statements imply a provably false factual assertion. 44

Statements of fact can be defamatory whereas statements of 

opinion—the publication of which is protected by the First 

Amendment—cannot. 45 Put another way, “‘subjective impressions’” cannot be defamatory, as contrasted with objective 

“‘expressions of verifiable facts.’” 46

However, the U.S. Supreme Court has discouraged the 

practice of dividing a speaker’s statements into “opinion” 

or “fact” and only considering whether the latter statements 

41 JB & Assocs. v. Nebraska Cancer Coalition, 303 Neb. 855, 932 N.W.2d 71 

(2019).

42 Bartels v. Retail Credit Co., 185 Neb. 304, 175 N.W.2d 292 (1970). See, 

also, § 25-840.

43 Wheeler v. Nebraska State Bar Assn., 244 Neb. 786, 508 N.W.2d 917 

(1993).

44 Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816 

(2015).

45 Id.

46 Id. at 940, 857 N.W.2d at 828.
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are actionable. 47 The Court explained that there is not a 

“wholesale defamation exemption for anything that might be 

labeled ʽopinion.’” 48 Even if the speaker states the facts upon 

which the speaker bases his or her opinion, if those facts are 

either incorrect or incomplete, or if his or her assessment of 

them is erroneous, the statement may still imply a false assertion of fact. 49

[18] Thus, shortly after the high court’s explanation, this 

court recognized that language must be evaluated in its 

broader context to assess whether a reader would have understood the allegation to be a statement of fact. 50 As we then 

stated, in determining whether a statement implies a provably false factual assertion, both the language of the statement and the context in which the statement was made must 

be examined. 51

[19] To distinguish fact from opinion in a defamation claim, 

courts apply a totality of the circumstances test. Relevant factors include (1) whether the general tenor of the entire work 

negates the impression that the defendant asserted an objective 

fact, (2) whether the defendant used figurative or hyperbolic 

language, and (3) whether the statement is susceptible of being 

proved true or false. 52

[20,21] Context is important to whether an ordinary reader 

would view a statement as one of fact or opinion. 53 In addition to the content of the communication, a court looks to 

the knowledge, understanding, and reasonable expectations 

47 See Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S. Ct. 2695, 111 L. 

Ed. 2d 1 (1990).

48 See id., 497 U.S. at 18. See, also, Wheeler v. Nebraska State Bar Assn., 

supra note 43.

49 Milkovich v. Lorain Journal Co., supra note 47.

50 See Wheeler v. Nebraska State Bar Assn., supra note 43.

51 Id.

52 Steinhausen v. HomeServices of Neb., supra note 44.

53 Id.
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of the audience to whom the communication was directed, 

taking cues from the broader setting in which the statement 

appears. 54 Words, particularly the pejorative ones, often have 

both a literal and figurative meaning. 55 As noted, whether the 

language is hyperbolic is relevant to distinguishing fact from 

opinion. 56 Rhetorical hyperbole—language that, in context, 

was obviously understood as an exaggeration, rather than a 

statement of literal fact—is not actionable. 57

With these principles in mind, we turn to Choice’s arguments, some of which appear only in the summary of argument 

portion of its brief. As best we can discern, its main argument 

seems to be that the district court failed to view Donner’s 

review in its totality. However, we apply de novo review to the 

question of whether a statement is defamatory. Thus, it matters 

not how the trial court analyzed the review if it reached the 

right result. 58

Choice argues Donner’s statements of fact that were undisputedly true should be considered defamatory, because it 

did not need to prove malice. Choice contends that a plaintiff only needs to prove malice if it is a public figure. But 

Donner’s motion for partial summary judgment also placed 

her affirmative defense before the court. And as we recognized 

above, by statute truthful statements are not actionable unless 

made maliciously. 59

Choice also argues that Donner’s review was defamatory, 

because she provided insufficient context for their interactions. 

In this regard, Choice argues that Donner failed to inform 

54 Id.

55 Id.

56 Id.

57 Id.

58 See Zawaideh v. Nebraska Dept. of Health & Human Servs., supra

note 26.

59 See JB & Assocs. v. Nebraska Cancer Coalition, supra note 41. See, also, 

§ 25-840.
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the reader that she and Jackson “breached the agreement,” 

“[k]nowing that they cited a false reason for refusing to close 

[which] painted Choice and [Gillman] as violating a close 

trusting relationship and taking advantage of a widow in a 

moment of weakness.” 60 Choice then asserts that “[t]he average person reading [Donner’s review] would be left with an 

impression that signing a [purchase] agreement with [Choice] 

and [Gillman] could subject a person to being unfairly sued in 

order for [C]hoice to ‘cash in’ on the agreement.” 61

Along the same line, Choice contends Donner’s invitation 

to the reader to “contact” her for “additional information” 

“implies that she has more defamatory information which she 

is willing to share.” 62 This, Choice argues, “distinguishes her 

[review] from protected opinion.” 63 We address this implication 

argument along with the preceding contextual argument.

To determine whether Choice could prove the elements of 

defamation, we must determine what statements, if any, by 

Donner were false and defamatory. Because there is no evidence in the record to prove that Donner published her review 

with malice, her statements of fact that were undisputedly true 

did not defame Choice. 64

Therefore, in analyzing Choice’s defamation claim, we 

only consider Donner’s statements that were not proved to be 

entirely undisputedly true. Such statements are as follows:

•“Please be careful of any contract you sign with . . . Gillm

of Choice.”

•“We the mistake of trusting him, signed a property contract with him, and when [Jackson] suddenly passed awa

60 Brief for appellant at 36.

61 Id.

62 Id. at 21.

63 Id.

64 See Steinhausen v. HomeServices of Neb., supra note 44. See, also, 

§ 25-840.
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[Gillman] wants to sue me, the widow, telling me this just a 

few days after [Jackson’s] passing, hoping to cash in.”

•“Please don’t trust this ma

•“Everything I have said is true, you can contact me throu

my Facebook account if you need verification I can provide 

both our lawyers and any other proof you need.”

In reviewing these statements, we consider the context of their 

publication and look to the knowledge, understanding, and 

reasonable expectations of the audience to whom the communication was directed, taking cues from the broader setting in 

which the statement appears.

In these statements, Donner used hyperbolic language to 

express her subjective skepticism of Gillman’s trustworthiness. Donner then concluded her review by reaffirming that 

her earlier statements of fact were undisputedly true and 

offering to discuss the matter with the reader privately. An 

ordinary reader would understand these statements to be 

Donner’s opinions.

Donner’s opinions did not imply a false statement of fact. 

Donner expressed her disfavor in Gillman for “want[ing] to 

sue” her, but she never implied that she was being “unfairly 

sued.” 65 Donner never claimed that she had no fault in failing 

to close on the purchase agreement. Donner never alleged that 

the only reason Gillman “want[ed] to sue” her was because she 

was a widow. Nor did Donner imply that the reader would suffer the same fate as her. Therefore, an ordinary reader would 

not infer that he or she would be “unfairly sued” simply by 

“signing a [purchase] agreement” with Choice. 66

We find Donner did not state or imply any false statements 

of fact in the review. Therefore, the district court did not err in 

finding that Choice could not prove the elements of its defamation claim.

65 Brief for appellant at 21.

66 Id.
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VI. CONCLUSION

The Act barred Choice’s nondefamation claims, because 

Choice sought to recover compensation for performing prohibited acts while not being a licensee. Additionally, Choice was 

not defamed by the review, because it did not state or imply 

a false statement of fact. We affirm the judgment of the district court.

Affirmed.

Miller-Lerman, J., not participating.