                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                         BROOKS V. PAULI


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                CLINTON BROOKS, JR., APPELLANT,
                                                 V.

                                   ASHLEY M. PAULI, APPELLEE.


                               Filed June 19, 2018.   No. A-17-716.


       Appeal from the District Court for Lancaster County: LORI A. MARET, Judge. Affirmed.
       Clinton Brooks, Jr., pro se.
       Linsey A. Camplin, of McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg, P.C.,
L.L.O., for appellee.


       MOORE, Chief Judge, and ARTERBURN and WELCH, Judges.
       WELCH, Judge.
                                        INTRODUCTION
       Clinton Brooks, Jr. (Brooks Jr.) has appealed the dismissal of his lawsuit alleging libel,
slander, and intentional infliction of emotional distress (IIED) against Ashley M. Pauli (Pauli) and
seeking $100,000 in damages.
                                      STATEMENT OF FACTS
        The background of this case began when Pauli, on behalf of her minor sister, filed a petition
to obtain a harassment protection order against Brooks Jr.’s son, Clinton Brooks III (Brooks III).
The affidavit in support of the petition to obtain the harassment protection order included a
statement that Brooks III was using his father, Brooks Jr., as his legal counsel. The affidavit also
set forth that Brooks Jr. had just been released from prison for impersonating a lawyer.




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        Although the harassment protection order was dismissed, Brooks Jr. felt that an allegation
in Pauli’s affidavit directed at him was tortious. In response, he filed a lawsuit against Pauli
alleging libel, slander, and IIED, for stating in her affidavit that he had just been released from
prison for impersonating a lawyer and prayed for $100,000 in damages. Both parties moved for
summary judgment. Following a hearing, the district court granted Pauli’s motion and denied
Brooks Jr.’s motion. Specifically, the district court found that the slander claim must fail because
the statement was not spoken. As to the libel claim, the court noted that Brooks Jr. had actually
been imprisoned for the unauthorized practice of law, but noted that the statement was privileged
as it was made as part of judicial proceedings. Finally, the court dismissed the IIED claim for lack
of evidence. Brooks Jr., acting pro se, has timely appealed to this court.
                                  ASSIGNMENTS OF ERROR
        Brooks Jr. has identified six assignments of error which can be consolidated into the
following issue: whether the district court erred in granting summary judgment in favor of Pauli.
His argument centers on his disagreement with the district court’s finding that Pauli’s statement in
her affidavit was privileged. He also argues that his conviction for the unauthorized practice of
law is distinguishable from Pauli’s allegation that he impersonated a lawyer.
                                   STANDARD OF REVIEW
         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. Heritage Bank v. Gabel, 298 Neb. 961, 906 N.W.2d 640 (2018).
         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. Thompson v. Johnson, 299 Neb. 819, 910 N.W.2d
800 (2018).
                                           ANALYSIS
                                             SLANDER
        Brooks Jr. argues that Pauli’s written statement that Brooks III was “using his father who
was just released from prison for impersonating a lawyer as his legal ‘counsel’” was slanderous
and untrue. The district court granted summary judgment and dismissed this claim because the
alleged statement was written and not spoken.
        A claim of defamation requires (1) a false and defaming statement concerning the plaintiff,
(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. Norris v. Hathaway, 5 Neb. App. 544, 561
N.W.2d 583 (1997). In the case of slander, the publication takes place when the words are spoken
and understood by a third person to pertain to the person slandered. Lathrop v. McBride, 209 Neb.
351, 307 N.W.2d 804 (1981). Because the allegation here is that the statement was written, not




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spoken, the district court correctly ruled that this matter does not involve a matter of a published
spoken statement and properly dismissed Brooks Jr.’s claim for slander.
                                                 LIBEL
         The district court found that Pauli’s written statement was not libelous as a matter of law
because the statement was “privileged” in that it was made as part of a judicial proceeding.
Brooks Jr. acknowledges that the doctrine of absolute privilege bars a claim for libel, but argues
that Pauli was not entitled to absolute privilege from his claim for libel because the statement she
wrote in her affidavit for the protection order had no relevance in the case against Brooks Jr.’s son,
Brooks III.
         The doctrine of absolute privilege bars claims for libel or slander involving statements
made in judicial proceedings as well as in quasi-judicial proceedings where the matter has some
relation to the proceeding. McKinney v. Okoye, 282 Neb. 880, 806 N.W.2d 571 (2011). See
Beckenhauer v. Predoehl, 215 Neb. 347, 349, 338 N.W.2d 618, 620 (1983) (“[i]t is a
well-established rule that libelous matter in a pleading which is relevant to, or has some reasonable
relation to, the judicial proceeding in which it is filed is absolutely privileged”). Allegations
contained in pleadings are privileged if the allegations are material or pertinent to the controversy
in litigation. Beckenhauer v. Predoehl, supra. “Where the question of the relevancy and pertinency
of matters in pleadings is to be inquired into, all doubt should be resolved in favor of relevancy
and pertinency.” Id. at 350, 338 N.W.2d at 620, quoting Simon v. London Guarantee & Accident
Co., 104 Neb. 524, 177 N.W. 824 (1920).
         The absolute privilege attaches to defamatory statements made incident to and in the course
         of a judicial proceeding if the defamatory matter has some relation to the proceeding. It is
         not necessary that the defamatory matter be relevant or pertinent to any issue before the
         court. It is necessary only that it have some relevance to the judicial function which is being
         performed.

Beckenhauer v. Predoehl, 215 Neb. at 350, 338 N.W.2d at 620-21. “[T]he defamatory matter need
not be relevant to any issue before the court, but is privileged if it has some reference to the judicial
function the judge is performing. If the defamatory matter has some reference to the subject matter
of the litigation, it is privileged.” Id. at 351, 338 N.W.2d at 621. Whether allegations in a pleading
are privileged is a question of law. Beckenhauer v. Predoehl, supra.
         The alleged defamatory statement made by Pauli was made in a petition and affidavit to
obtain a harassment protection order on behalf of her minor sister against Brooks III. The affidavit
set forth the following:
                 [Pauli’s minor sister] withheld visitation of [her and Brooks III’s] daughter like our
         lawyer suggested due to [Brooks III’s] threatening to not give [the child] back until custody
         was established. On [the minor sister’s] phone alone between 2 pm-4 pm she [received] 33
         calls, 5 [texts] and a [Facebook] message. We called LPD out who told [Brooks III] no
         more contact. . . .
                 [Pauli’s minor sister] received a phone call from our other sister Madie stating Mr.
         Brooks had sent him [sic] nude photos of [the minor sister] from when they were together



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       and she was 17. When confronted by LPD, he stated he didn’t sent them - there’s
       documentation and proof. (Lawyer has that case #.) . . .
                Mr. Brooks texted [the minor sister] while she was in school stating she gave a false
       statement to the police and he was going to report her. (About us working with Linsey
       Camplin on getting custody of their daughter.) He also proceeded to send her voice memos
       of him talking to his “lawyer” about establishing custody and taking full custody
       intimidating [the minor sister]. [The minor sister’s] lawyer verified that [Brooks III] didn’t
       file like he threatened . . . and [Brooks III] is using his father [Brooks Jr.] who was just
       released from prison for impersonating a lawyer as his legal “counsel” or to help him file.

        Pauli’s statements about Brooks Jr. were made in relation to numerous acts alleged by Pauli
that were designed to intimidate and threaten her minor sister. The specific statement relates to use
of a lawyer to obtain custody of the minor sister’s child which she claimed to be a false threat.
Pauli’s statements had some reference to the judicial function that the judge was being asked to
perform, that is, reviewing allegations of threats by Brooks III, some of which were allegedly done
with the help of Brooks Jr. They were made in the context of Pauli’s request for a harassment
protection order. Since the petition and affidavit to obtain a harassment protection order was
incident to, and in the course of, a judicial proceeding, and because the allegation against
Brooks Jr. had some relation to that proceeding, Pauli’s statement was privileged and the district
court did not err in so holding.
                                               IIED
        Finally, regarding his claim of IIED, Brooks Jr.’s sole assignment is that Pauli’s reference
of him in the petition and affidavit for the protection order was done with malicious intent;
however, the district court found that Brooks Jr. had provided no evidence to support his claim for
IIED.
        To recover for intentional infliction of emotional distress, a plaintiff must prove (1)
intentional or reckless conduct, (2) that was so outrageous in character and so extreme in degree
as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly
intolerable in a civilized community, and (3) that the conduct caused emotional distress so severe
that no reasonable person should be expected to endure it. Roth v. Wiese, 271 Neb. 750, 716
N.W.2d 419 (2006). Whether conduct is extreme and outrageous is judged on an objective standard
based on all the facts and circumstances of the particular case. Id. “The facts must be such that
when heard, an average member of the community would resent the actor and exclaim
‘“Outrageous!”’” Id. at 762, 716 N.W.2d at 432, quoting Heitzman v. Thompson, 270 Neb. 600,
705 N.W.2d 426 (2005).
        Pauli filed a motion for summary judgment and, in support, Pauli introduced into evidence
Brooks Jr.’s responses to discovery requests. Having made a prima facie case that Brooks Jr. could
not prevail on his claim for summary judgment, the burden shifted to Brooks Jr. to produce
admissible contradictory evidence showing the existence of a material issue of fact that prevented
judgment as a matter of law. Thompson v. Johnson, 299 Neb. 819, 910 N.W.2d 800 (2018).
Brooks Jr. produced no such evidence of conduct so outrageous to go beyond the bounds of



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decency or emotional distress so severe that no reasonable person should be expected to endure it.
Brooks Jr.’s sole argument on appeal is that Pauli’s affidavit was done with malicious intent. The
court correctly denied Brooks Jr.’s motion for summary judgment and properly granted Pauli’s
motion for summary judgment.
                                        CONCLUSION
       In sum, the pleadings and admitted evidence show that there is no genuine issue as to any
material facts in this case and that Pauli was entitled to summary judgment as a matter of law,
which was properly granted by the district court.
                                                                                     AFFIRMED.




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