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THOMPSON v. JOHNSON

Cite as 299 Neb. 819

Kim M. Thompson, appellant

Aaron M. Johnson an

L. Johnson, appelle

___ N.W.2d ___

Filed May 4, 2018. No. S-17-445.

1. Summary Judgment: Appeal and Error. An appellate court will 

affirm 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 those facts 

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

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Torts: Intent: Proof. To succeed on a claim for tortious interference 

with a business relationship or expectancy, a plaintiff must prove (1) the 

existence of a valid business relationship or expectancy, (2) knowledge 

by the interferer of the relationship or expectancy, (3) an unjustified 

intentional act of interference on the part of the interferer, (4) proof that 

the interference caused the harm sustained, and (5) damage to the party 

whose relationship or expectancy was disrupted.

4. Torts: Employer and Employee. Factors to consider in determining 

whether interference with a business relationship is “improper” include: 

(1) the nature of the actor’s conduct, (2) the actor’s motive, (3) the 

interests of the other with which the actor’s conduct interferes, (4) the 

interests sought to be advanced by the actor, (5) the social interests in 

protecting the freedom of action of the actor and the contractual interests 

of the other, (6) the proximity or remoteness of the actor’s conduct to 

the interference, and (7) the relations between the parties.

5. Torts: Liability. A person does not incur liability for interfering with 

a business relationship by giving truthful information to another. Such 

interference is not improper, even if the facts are marshaled in such a 

Nebraska Supreme Court Online Library

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

07/20/2018 01:08 AM CDT
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way that they speak for themselves and the person to whom the information is given immediately recognizes them as a reason for breaking a 

contract or refusing to deal with another.

6. Summary Judgment: Proof. Once the moving party makes a prima 

facie case, the burden shifts to the party opposing the motion to produce 

admissible contradictory evidence showing the existence of a material 

issue of fact that prevents judgment as a matter of law.

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

analysis which is not needed to adjudicate the controversy before it.

Appeal from the District Court for Douglas County, Horati

J. Wheelock, Judge, on appeal thereto from the County Cour

for Douglas County, Susan M. Bazis, Judge. Judgment

District Court affirmed.

Joy Shiffermiller and Abby Osborn, of Shiffermiller Law 

Office, P.C., L.L.O., for appellant.

Damien J. Wright, of Welch Law Firm, P.C., for appellees.

Heavican, C.J., Miller-Lerman, Cassel, and Stacy, J

Luther and O’Gorman, District Judg

Luther, District Judge

INTRODUCTION

This appeal arises from a lawsuit filed by Kim M. Thompson 

(Kim) in which she alleged that Aaron M. Johnson and Shawna 

L. Johnson tortiously interfered with her business relationship 

with her employer, Millard Public Schools (MPS). The county 

court for Douglas County granted Aaron and Shawna’s motion 

for summary judgment, and the district court for Douglas 

County affirmed. Kim now appeals to this court. Kim asserts, 

in pertinent part, that the evidence shows a genuine issue of 

material fact concerning whether interference by Aaron and 

Shawna was justified. We conclude that the undisputed facts 

show that Aaron’s and Shawna’s actions were justified, because 

they provided truthful information to MPS. Therefore, we 

affirm the district court’s order.
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BACKGROUND

Partie

The undisputed evidence shows that Kim and Aaron met 

through their work with MPS. In her position as a project manager employed by MPS, Kim organized construction projects 

within the district. Aaron worked on construction projects for 

MPS as an independent contractor. At all times relevant to this 

appeal, Aaron was married to Shawna and they had children 

attending MPS. In October 2011, Kim and Aaron began an 

extramarital affair.

October 2012 Suspe

In October 2012, Shawna learned of the affair between Kim 

and Aaron. Aaron ended the affair and informed MPS that he 

would no longer work with Kim. Following an investigation, 

MPS discovered that Kim had used MPS’ computers “to communicate inappropriate messages and pictures” with Aaron, in 

violation of MPS policy. As a result, MPS suspended Kim for 

8 days without pay.

Continued Contac

March 2014 Direct

Kim and Aaron continued to have contact with each other. 

On February 26, 2014, in response to an email from Kim in 

which she stated that Aaron did not care about her, Aaron 

wrote, “If I didn’t care about you at all, why would I have ever 

agreed to talk to you? . . . If I didn’t care and I wanted to go 

into your boss and get you fired, and ruin your life, I could 

have done it long ago.”

Not long afterward, new concerns about Kim’s job performance prompted a meeting between her and MPS officials. 

At the meeting on March 3, 2014, MPS officials addressed 

the issue of an angry and loud telephone call that Kim had 

conducted with her ex-husband in the workplace and allegations that Kim had gone through documents on her supervisor’s desk.
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During the meeting process, Kim volunteered that she 

was having issues with Aaron and Shawna. Kim stated to 

MPS officials that in November 2013, Aaron had shown up 

at her workplace demanding to speak to her and threatening to cause a scene. Kim told MPS officials that to process 

her feelings after “good talks” with Aaron in the summer of 

2013, she had painted a painting of her and Aaron and posted 

it on Facebook, initially identifying the two by name. She 

stated that when Aaron asked her to remove the painting, 

she removed the identifying names, but she did not remove 

the painting. Kim reported that this caused Aaron to threaten 

to call her supervisor and jeopardize her employment. Kim 

also told MPS officials that Shawna had been stalking Kim’s 

Facebook page.

On March 7, 2014, MPS wrote a letter to Kim documenting 

the topics discussed and the expectations communicated at the 

March 3 meeting. In part, the letter stated:

ISSUE #5: The issue of your relationship with the 

person who almost cost you your job (Aaron) came up 

repeatedly . . . . This is related to the affair you had with 

Aaron (a former contractor for the District) in 2012 that 

was dealt with in your reprimand and suspension letter 

from late 2012.

. . . .

EXPECTATION: . . .

. . . .

We discussed how your affair with Aaron almost cost 

[you] your job before. Now, you appear to be escalating 

a confrontation with Aaron and his wife by posting on a 

public media page. . . . As we discussed, if you escalate 

this conflict and that escalation impacts [the] workplace, 

it is likely to lead to future discipline, up to and including termination.

. . . .

. . . Specifically, it is not our intention to take any 

action if Aaron or his wife reacts irrationally to a post that 
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is not about them. However, if your communications can 

be reasonably interpreted as an escalation of that conflict 

and that conflict disrupts the workplace, we may not be 

able to support you.

Kim signed the document, acknowledging that she had 

received it.

Further Contact Between Part

March to June 2

On or about March 25, 2014, Shawna received a link from 

“Lisa Johnson,” who claimed to be a friend of Kim’s. The link 

invited Shawna to view a cloud account that contained over 

200 documents showing communications between Kim and 

Aaron, to demonstrate to Shawna “what has been happening 

behind your back for the last year.” “Lisa Johnson” claimed 

that she was able to access the information because Kim’s 

password was easy to deduce. Shawna and “Lisa Johnson,” 

who Shawna believed to be Kim, corresponded about the affair 

on Facebook, and Shawna used the format to tell Kim not to 

contact Aaron or Shawna again. On March 30, Aaron posted 

on the “Lisa Johnson” Facebook page, telling Kim to cease 

contact with him and his family.

On April 2, 2014, an attorney representing Aaron and 

Shawna sent a letter to Kim, telling her not to contact them. 

On April 9, an attorney for Kim sent a letter to Aaron and 

Shawna’s attorney. The letter requested that Aaron not contact 

Kim at any location, including her workplace.

On April 14 and 23, 2014, Kim sent text messages to Aaron 

sarcastically praising Aaron’s relationship with Shawna and 

expressing sadness over losing Aaron. On April 24, Shawna 

sent a long email message to Kim, telling her to stop contacting Aaron.

On April 28, 2014, Kim emailed Shawna an invitation to 

“Find me on Facebook.” The email prompted Shawna to search 

Facebook, which led her to discover a Facebook page for 

“Kimberly Johnson.” The “Kimberly Johnson” page consisted 
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of long, indepth journal-style posts related to Kim’s affair with 

Aaron. This content was viewable to the public. Kim made 

similar posts on her “Kim Thompson” Facebook page. Kim 

continued to post on the Facebook pages with comments and 

questions specifically directed at Shawna.

On May 12, 2014, Shawna emailed Kim to arrange a meeting between Aaron, Shawna, and Kim to resolve the issues 

that had occurred. The meeting did not take place, but over 

the course of 5 days, Shawna and Kim exchanged a series of 

lengthy email messages, the tone of which ranged from vitriolic to sympathetic on both sides. Ultimately, Shawna asked for 

no further contact from Kim and shut down the email account 

that she had used to communicate with Kim.

Kim continued to post on her “Kimberly Thompson” 

Facebook page with comments directed at Aaron and Shawna. 

On May 31, 2014, Kim referenced Aaron and Shawna’s children: “I burst out crying tonight just thinking about your boys 

[I] grew to love from just your stories. I am SO sad. I know it 

sounds crazy, but [I] feel like [I] lost them too.”

On June 2, 2014, Kim reported to MPS that Shawna had 

posted on her Instagram account that Shawna had scheduled principal/parent meetings to discuss security concerns 

for her children due to an employee. Kim informed MPS that 

Aaron and Shawna had been “blocked” from her Facebook 

account.

On June 5, 2014, in a post directed at Shawna, Kim stated, 

“I do love your boys like my own, and I would never hurt 

them intentionally.” Also on June 5, “Macy James” messaged 

the “Kimberly Thompson” Facebook account and stated, “I 

WILL follow through with the meetings scheduled this fall b/c 

you are unstable and should not have access to my kids in any 

way.” Other elements of the message suggested that “Macy 

James” was likely Shawna.

On June 24, 2014, Kim sent a brief message to Aaron’s work 

email account, calling him a “horrible person” and an “ugly 

man” with “no heart or a conscience.” Aaron and Shawna 
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believed that this was the first time Kim had emailed that 

particular account. Shawna was concerned that Kim may have 

obtained the email address from MPS files for Aaron and 

Shawna’s children, where the email address was listed as contact information. Further, Shawna was concerned, because, due 

to Kim’s employment, Kim had access to MPS buildings; and 

Shawna thought it possible that Kim would attempt to involve 

her children in the situation or make contact with them to provoke a reaction from Aaron and Shawna.

July 2014 Terminat

On July 2, 2014, Shawna emailed MPS to address the concerns that she and Aaron had for the safety and privacy of their 

children, whom Kim had not met. Shawna’s email summarized 

the contact she and Aaron had with Kim beginning in 2012. 

Shawna further stated:

Last week [Kim] emailed my husband’s business email 

account . . . . The only way he or I can think she may 

have gotten this email account is through our children’s 

confidential information held by the district . . . .

. . . [W]e have sound reason to be concerned for 

the well[-]being of our children as [Kim] has access 

to all buildings in the district due to the nature of her 

job as I understand it. We are also very concerned that 

our privacy will inevitably be compromised so long as 

[Kim] works for MPS and our kids attend MPS. We 

are considering removing them from the district for this 

reason . . . .

Shawna requested a meeting on the matter, but she did not 

request any specific action relating to Kim. In an affidavit, 

Shawna specifically disclaimed sending the email with the 

intent of ending Kim’s employment.

Shawna’s email included a link to the “Kim Thompson” 

Facebook page and offered to provide additional documentation upon request. The same day, the director of human 

resources for MPS called Shawna and asked for additional 
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documentation. Shawna provided printouts of several Facebook 

postings, messages from Kim, and Shawna’s own handwritten 

notes documenting her interactions with Kim.

During the resulting meeting with MPS on July 7, 2014, 

Kim admitted inviting Shawna to view her Facebook page 

and, except for some minor factual discrepancies, she admitted 

to posting the majority of the material provided by Shawna. 

MPS placed Kim on nondisciplinary, paid administrative leave 

while MPS investigated the matter. MPS officials told Kim 

not to have further contact with Aaron and Shawna until MPS 

decided how to proceed.

On July 8, 2014, the day after the meeting, Shawna received 

a notification from a social media website that Kim had 

“repinned [one] of [Shawna’s] pins.” MPS officials subsequently learned of this notification, which they considered contrary to the no-contact directive they had given to Kim.

MPS officials decided to terminate Kim’s employment. At 

a deposition, MPS’ director of employee relations explained 

that MPS officials based the decision on “insubordination, 

unprofessional conduct, just the continuation of the escalation 

of the conflict where she continued to post things that made 

it . . . uncomfortable with [Aaron and Shawna’s] kids being 

in school as parents of the district, residents of the district, 

just inappropriate conduct.” He also testified regarding why 

Thompson’s employment was terminated in 2014 and not in 

2012, when the affair first came to light:

Q. Why wasn’t [Kim] fired in 2012 when the affair was 

first discovered?

A. . . . I recall the conversation being that she’s had 

a fairly long tenure as a decent employee. Is there anything we can do to save her where she might change her 

behaviors? And at that point, it was thought there was a 

reasonable probability of success was the consensus if we 

allowed [Kim] to continue [her] job.

Q. And in 2014, there was not the same feeling?

A. Correct.
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MPS officials offered Kim the option to resign in lieu of 

termination of her employment. Kim opted to resign.

Litigat

On September 14, 2015, Kim filed a lawsuit against Aaron 

and Shawna in the county court. She alleged, inter alia, a cause 

of action based on the theory of tortious interference with 

a business relationship. In part, she averred that Aaron and 

Shawna had “committed numerous unjustified intentional acts 

of interference in an attempt to cause [Kim] to lose her job at 

[MPS]” and that such interference was done with the intent or 

reasonably foreseeable effect of causing harm to Kim.

Aaron and Shawna filed a motion for summary judgment. 

Following a hearing on the motion, consisting of the evidence 

above, the county court granted summary judgment in favor of 

Aaron and Shawna and dismissed Kim’s complaint, with prejudice. In part, the county court found that Aaron and Shawna 

were justified in contacting MPS due to concerns for their 

children and that Shawna’s email did not cause termination 

of Kim’s employment. Instead, the county court determined 

that Kim’s own conduct and continued contact with Aaron and 

Shawna caused the termination.

Kim appealed the county court’s order to the district court. 

After a hearing, the district court affirmed.

Kim now appeals to this court.

ASSIGNMENTS OF ERROR

Kim assigns, condensed and restated, that the county court 

erred in failing to find a genuine issue of material fact that 

precluded summary judgment against her claim of tortious 

interference with a business relationship.

STANDARD OF REVIEW

[1,2] An appellate court will affirm 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 
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as to the ultimate inferences that may be drawn from those 

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

matter of law.1 In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the 

party against whom the judgment was granted and gives that 

party the benefit of all reasonable inferences deducible from 

the evidence.2

ANALYSIS

Kim appeals the order of the district court that affirmed 

the county court’s order granting summary judgment in favor 

of Aaron and Shawna. For the benefit of judges and practitioners, we take this opportunity to note that, effective August 

24, 2017, the Legislature modified Neb. Rev. Stat. § 25-1332 

(Supp. 2017) to impose citation and argument requirements 

regarding assertions of disputed facts on summary judgment. But here, neither party assigns error based upon the 

new procedures.

[3] This appeal turns on a single theory of recovery: tortious 

interference with a business relationship. To succeed on a 

claim for tortious interference with a business relationship or 

expectancy, a plaintiff must prove (1) the existence of a valid 

business relationship or expectancy, (2) knowledge by the 

interferer of the relationship or expectancy, (3) an unjustified 

intentional act of interference on the part of the interferer, (4) 

proof that the interference caused the harm sustained, and (5) 

damage to the party whose relationship or expectancy was 

disrupted.3 On appeal, Kim disputes the county court’s findings that no genuine issue of material fact existed concerning 

whether Aaron’s and Shawna’s interference was unjustified 

and whether such interference caused Kim to lose her job 

with MPS.

1 Benard v. McDowall, LLC, 298 Neb. 398, 904 N.W.2d 679 (2017).

2 Id.

3 Recio v. Evers, 278 Neb. 405, 771 N.W.2d 121 (2009).
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Whether Interference 

and Shawna Was Unj

[4] To assist in determining whether interference is “unjustified” under the third prong of the foregoing test, Nebraska 

has adopted the seven-factor balancing test of the Restatement 

(Second) of Torts.4 Under the Restatement’s general test, factors to consider in determining whether interference with a 

business relationship is “improper” include: (1) the nature of 

the actor’s conduct, (2) the actor’s motive, (3) the interests 

of the other with which the actor’s conduct interferes, (4) the 

interests sought to be advanced by the actor, (5) the social 

interests in protecting the freedom of action of the actor and 

the contractual interests of the other, (6) the proximity or 

remoteness of the actor’s conduct to the interference, and (7) 

the relations between the parties.5

[5] Ordinarily, we would use these factors to determine 

whether interference is “improper” and, thus, “unjustified” 

under our law.6 However, if the information provided is truthful, the interference is not unjustified.7

 We have expressly 

stated, “[A] person does not incur liability for interfering 

with a business relationship by giving truthful information to 

another.”8 Such interference is not improper, even if the facts 

are marshaled in such a way that they speak for themselves 

and the person to whom the information is given immediately recognizes them as a reason for breaking a contract 

or refusing to deal with another.9 When truthful information 

provides the basis for a termination of a business relationship, 

the resulting liability, if any, should rest on the party who 

4 See, Sulu v. Magana, 293 Neb. 148, 879 N.W.2d 674 (2016), citing Recio 

v. Evers, supra note 3; Restatement (Second) of Torts § 767 (1979).

5 Id.

6 See Sulu v. Magana, supra note 4.

7 Sulu v. Magana, supra note 4; Recio v. Evers, supra note 3.

8 Recio v. Evers, supra note 3, 278 Neb. at 421, 771 N.W.2d at 133.

9 Id.
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made an informed choice to terminate the relationship—not 

the party who provided the facts upon which that decision 

was based.10

Viewed in the light most favorable to Kim, the evidence 

demonstrates that Aaron and Shawna conveyed truthful information to MPS and that, therefore, such communication was 

not unjustified. First, in 2012, Aaron informed MPS of his 

affair with Kim. The entire record and Kim’s suit are based on 

the truthfulness of that disclosure. Second, Shawna’s July 2, 

2014, email to MPS officials raised Aaron’s and Shawna’s concerns for the safety and privacy of their children. Shawna provided specific examples of Kim’s questionable behavior that 

were either supported or undisputed by the record. Her email 

also included a link to Kim’s “Kim Thompson” Facebook 

page, and Shawna later provided additional documentary evidence of Kim’s online activity to MPS. When MPS confronted 

Kim with the documentation provided by Shawna, Kim admitted to posting the material, except for a few minor factual 

disputes. But the discrepancies noted by Kim did not establish 

any genuine issue of material fact about the truthfulness of 

Shawna’s disclosures to MPS.

Thus, because Aaron and Shawna deduced evidence that 

their communications with MPS were truthful and therefore not 

“unjustified,” they disproved an essential element of tortious 

interference with a business relationship and made a prima 

facie showing that they were entitled to summary judgment.

[6] Once the moving party makes a prima facie case, the 

burden shifts to the party opposing the motion to produce 

admissible contradictory evidence showing the existence of 

a material issue of fact that prevents judgment as a matter of 

law.11 Kim asserts that she presented evidence that Aaron’s and 

Shawna’s communications with MPS were not based in truth, 

thereby rebutting their position that those communications 

10 Id.

11 Sulu v. Magana, supra note 4.
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were justified. She primarily attempts to raise factual disputes 

about Aaron’s and Shawna’s beliefs relating to the source of 

Aaron’s work email address and about their concerns regarding 

the children that Shawna said prompted her July 2014 email to 

MPS. We find no merit to Kim’s arguments.

Kim contends that Shawna’s email falsely claimed that 

prior to the message Kim sent to Aaron’s work email address 

in June 2014, Kim had not used that particular address. Kim 

cites to the record and claims that she used Aaron’s work email 

address in February 2014. However, the February 2014 email 

address cited by Kim is different from the one she used in 

June 2014; and the record does not reveal any other instance 

of Kim’s sending messages to that address or receiving messages from it. Additionally, we note that Shawna’s email did 

not categorically assert that Kim had accessed the children’s 

records to obtain Aaron’s work email address, but, rather, 

stated that the children’s records were the only source for the 

information that Aaron and Shawna could surmise. The record 

simply does not raise any dispute as to the truthfulness of 

Aaron’s and Shawna’s professed beliefs about the source of 

the email address.

Kim further attempts to discredit Shawna’s concern for 

her children’s safety because Kim had never met the children and because Shawna was aware, through the copious 

documents disclosed to her, that Kim had expressed to Aaron 

that she cared about the children. Similarly, Kim argues that 

the evidence does not support concern for the children on 

Aaron’s part, because he and Kim had previously corresponded 

about the children and Kim’s potential relationship with them. 

However, the record does not contradict the sincerity of the 

concerns that Shawna attributed to herself and to Aaron. In fact, 

the undisputed evidence demonstrates that Aaron and Shawna 

had ample reason to be concerned. After the affair ended, 

Kim made varied, time-consuming, and at times underhanded 

efforts to engage Aaron and Shawna in intense discussions 

about the affair and about Aaron and Shawna as individuals. 
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These communications included references to Aaron and 

Shawna’s children, to whom Kim had potential access through 

her employment. Certainly, Aaron’s and Shawna’s communications with Kim contributed to escalating tensions with her. 

But their participation does not negate the truthfulness of their 

reports to MPS concerning their interactions with Kim.

Kim also tries to refute the veracity of Aaron’s and Shawna’s 

concerns by citing their previous “threats” and actions to jeopardize Kim’s employment. She specifically refers to Shawna’s 

Instagram post, messages authored by “Macy James,” the 

February 2014 email to Kim from Aaron, and Aaron’s attempts 

to contact her at MPS. According to Kim, this evidence 

reflects the intent to have Kim’s employment terminated. We 

note that Shawna expressly denied that she intended to end 

Kim’s employment by emailing MPS. Furthermore, we have 

previously observed that while a malicious motive is a factor 

which may be considered in determining whether interference 

is unjustified, it is generally insufficient standing alone to 

establish that fact; and in making that observation, we reiterated that a party will not incur liability for the communication 

of truthful information.12 While the evidence cited by Kim 

may imply an underlying desire that Kim’s employment with 

MPS end and while the information Shawna provided was 

marshaled in a way that was damning to Kim, these factors do 

not diminish the truthfulness of Aaron’s and Shawna’s communications with MPS.

The factual disputes that Kim attempts to generate simply 

are not issues of material fact. Having considered Kim’s arguments while giving her the benefit of all reasonable inferences 

deducible from the evidence, we discern no issue of material 

fact concerning the truthfulness of the information Aaron and 

Shawna provided to MPS.

In sum, Kim failed to meet her burden to produce admissible contradictory evidence creating a material issue of fact 

12 See Recio v. Evers, supra note 3.
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to rebut Aaron and Shawna’s prima facie case; and the district 

court did not err in affirming the county court’s order granting 

summary judgment in favor of Aaron and Shawna.

Whether Interference by 

Shawna Caused Harm to

[7] Because we have concluded that Aaron and Shawna are 

not liable to Kim based on their truthful communications with 

MPS, thus defeating Kim’s claim, we need not consider Kim’s 

contentions that those communications caused her harm.13 An 

appellate court is not obligated to engage in an analysis which 

is not needed to adjudicate the controversy before it.14

CONCLUSION

For the reasons stated above, we conclude that because 

Aaron and Shawna provided truthful information to MPS about 

Kim, they could not incur liability for interfering with Kim’s 

business relationship with MPS. Therefore, the county court 

did not err in granting Aaron and Shawna’s motion for summary judgment on Kim’s claim of tortious interference with a 

business relationship, and the district court did not err when it 

affirmed the county court’s ruling. Accordingly, we affirm the 

district court’s order.

Affirm

Funke, J., participating on briefs

Wright, J., not participatin

13 See id.

14 Id.