Recio v. Evers

Clearly, some of the information that Rankin seeks through
discovery, i.e., the reason for Stetson’s surrender of his licen-
sure, is public information. But we cannot say at the discovery
stage that she could not obtain further information that would
be relevant to Stetson’s credibility or a misleading character-
ization of him at trial. Nor can we rule out her obtaining infor-
mation that would be relevant to showing his medical judgment
was impaired at the time he treated Rankin. But we emphasize
that we are not commenting on whether this information is
admissible at trial.
CONCLUSION
We conclude that the relators have failed to meet their bur-
den of showing clearly and conclusively that they are entitled
to quash discovery of information regarding Stetson’s sur-
render of his license. In addition, they do not have standing
to quash a subpoena directed at the Department to obtain its
records. We therefore deny their request for a peremptory writ
of mandamus ordering Judge Silverman to vacate his discov-
ery order.
P eremPtory writ denied.
mccormack, J., participating on briefs.
roxana recio, aPPellant, v.
michelle evers , aPPellee .
771 N.W.2d 121
Filed August 28, 2009. 	No. S-07-1338.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact 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. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all favorable
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
ReCIO v. eveRS 	405
Cite as 278 Neb. 405
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

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. ____: ____: ____. One of the basic elements of tortious interference with a busi-
ness relationship requires an intentional act which induces or causes a breach or
termination of the relationship.
5. Actions: Intent. In order to be actionable, interference with a business relation-
ship must be both intentional and unjustified. An intentional, but justified, act of
interference will not subject the interferer to liability.
6. 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.
7. 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 way that they speak for them-
selves 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.
8. Pleadings. The purpose of pleadings is to frame the issues upon which a cause of
action is to be tried, and the issues in a given case will be limited to those which
are pled.
9. Libel and Slander: Words and Phrases. Actual malice, in the context of defa-
mation, is defined as “hate, spite, or ill will.”
10. Libel and Slander: Intent. Actual malice requires that the defendant act with
a desire to harm the plaintiff that is unrelated to a desire to protect the acting
party’s rights and which is not reasonably related to the defense of a recognized
property or social interest.
11. ____: ____. Actual malice is generally an issue of fact.
12. Summary Judgment: Words and Phrases. There is a difference between an
“issue of fact” and a “genuine issue as to any material fact” within the meaning
of Neb. Rev. Stat. § 25-1332 (Reissue 2008).
13. Summary Judgment. The primary purpose of the summary judgment procedure
is to pierce the allegations in the pleadings and show conclusively that the con-
trolling facts are other than as pled.
14. ____. Simply alleging an issue of fact is insufficient to defeat a motion for sum-
mary judgment.
15. 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:
J. michael coffey, Judge. Affirmed.
Kevin J. McCoy, of Smith, Gardner, Slusky, Lazer, Pohren &
Rogers, L.L.P., for appellant.
406 	278 NeBRASKA RePORTS

Thomas F. Hoarty, Jr., of Byam & Hoarty, P.C., L.L.O., for
appellee.
heavican, 	c.J., 	wright, 	connolly, 	gerrard, 	stePhan,
mccormack , and miller-lerman, JJ.
gerrard, J.
Roxana 	Recio, 	a 	professor 	at 	Creighton 	University
(Creighton), was placed on probation and required to attend
counseling 	after 	Creighton’s 	sexual 	harassment 	committee
found merit in a sexual harassment complaint made by Recio’s
colleague, Michelle evers. Recio sued evers for tortious inter-
ference with a business relationship, but the district court
entered summary judgment against Recio. The primary ques-
tion presented by this appeal is whether there is a genuine
issue of material fact as to whether evers’ sexual harassment
complaint was justified. Based on the record presented, we find
that evers’ sexual harassment complaint was justified because
it provided truthful information to Creighton. Therefore, we
affirm the judgment of the district court.
BACKGROUND
Recio was a tenured professor of Spanish in Creighton’s
department 	of 	modern 	languages 	and 	literatures 	(the
Department). In February 2001, evers accepted a position as
a professor of Spanish in the Department, to begin in August
2001. evers and Recio became acquainted during evers’ hir-
ing process and began e-mailing one another. Recio’s e-mails
to evers formed the basis of evers’ eventual complaint of
sexual harassment. The messages were originally in Spanish
or Catalan; Recio does not deny sending the messages, but the
semantics of their translation and context are disputed. The
following excerpts are taken from evers’ translations, because
they are the only complete translations that are in the record.
Any relevant disputes over translation are noted. And because
of the informal style of these messages, there are various gram-
mar, spelling, and syntax errors. Indicating each error with a
“[sic]” would be distracting, so we reproduce each of the trans-
lated messages in its original form. Because they are essential
to resolving this appeal, they are quoted at some length.
ReCIO v. eveRS 	407
Cite as 278 Neb. 405

recio’s e-mails
The first message at issue, sent by Recio to evers on April
16, 2001, mostly discussed the work of a particular Catalan
poet who was apparently of academic interest to them. Recio
also discussed her summer travel plans, however, and prom-
ised to send postcards from each of her stops. Recio wrote,
“I’ll write you from everywhere and you don’t have to answer
my postcards, of course, what I would like though would be
to receive a letter from you sometime, short, but at least send
me one.” Recio also wrote that she would help evers prepare
articles for publication.
I would like you to publish, if you want, of course, I don’t
want to stick myself in your life . . . but I do want to be
your friend, do you understand? I hope so, because if you
don’t understand, you will end up hating me and I will
have an attack. If I don’t see you in August as we were
saying this morning . . . UFFF! . . . I think I would shoot
myself in the head (think that I’m bad off in the head if
you want, I don’t care, but I will shoot myself).
(emphasis in original.) Recio claims that “I don’t want to
stick myself in your life” is a literal translation, but that
the verb would have been better translated as “‘to meddle,
intrude, interfere.’”
A message sent the following day was still discussing the
same poet, but was more personal. Recio wrote:
The truth is, I really feel like talking to you and I don’t
know if I’ll have time and if I’ll be able to tell you all that
I want. . . . The most important thing is to communicate
and I am happy with your e-mails in any case. Of course,
I haven’t erased your voice from my answering machine.
It makes me happy and I love it. I’ll leave it there a few
days. I just feel like it. I’m trying hard not to call you . . .
but I won’t do it because I don’t want to take advantage
of you. I was thrilled to talk to you yesterday. You already
know that I don’t have to tell you what I feel because you
know quite well and also I am always repeating to you
like a parrot.
Recio contends that “Of course” should have been translated
“‘[B]y the way’” and that “It makes me happy and I love it”
408 	278 NeBRASKA RePORTS

should have been translated “‘I find it funny and I like it.’”
Recio claims that “I was thrilled to talk to you” would have
been more accurately translated as “I enjoyed talking to you”
or “I loved to talk to you.” Recio also contends that “You
already know that I don’t have to tell you what I feel” actually
contained a reference to the previous sentence, so the idea was
“‘[Y]ou already know that I loved to talk with you.’”
Recio’s message went on to say that she had told her husband
she wanted to take evers to a particular restaurant in Spain and
that “[h]e doesn’t mind, he says it’s fine.” Recio wrote, “Let’s
see if we can go someday (you can bring whomever you want,
but I want to bring you).” Recio also commented more on a
particular poet and wrote, “I love that you’re reading him and
that you stay up late reading it. How great, I figured out what
you like! Could you keep telling me what you like to read? I
want to share with you.” Recio again asked evers to write her,
and promised, “I’ll send you all the e-mails that I can. You’ll
get tired of it, I won’t. For me, you are very important.” Recio
concluded, “Hey, I miss you (I won’t ever tell you that again,
I promise). Write me when you can, okay? Don’t forget. I
hope the summer goes by fast (to be able to see you once and
for all!).”
Another, shorter message was sent later the same day. Recio,
who is a Cuban exile, asked evers if she was “Pro-Castro.”
Recio asked:
Do you believe all that propaganda? It would hurt me
but I would still have the same caring feelings for you.
The truth is, I already care so much for you that I don’t
know what I would say. It would be terribly hard to dis-
cuss with you. I’ll tell you seriously, you are in charge.
I am at your feet, I am not a man . . . (that last part is
a joke)[.]
Recio concluded by promising to write later, and she did so
that evening. Recio wrote:
I just called you and it surprised me that you had
already read the message I sent you. But I liked that you
told me that you aren’t Pro-Castro, it wouldn’t have mat-
tered, but I feel much better, I confess. To tell you the
truth, it would have been painful for me but I wouldn’t
ReCIO v. eveRS 	409
Cite as 278 Neb. 405

have discussed it with you. Of course I discuss it but
with you it wouldn’t have made a difference. Okay, but
the thing is, it was funny the way you proclaimed it. You
know what I am discovering? I think that you like to
laugh, you like good humor, you have a spark when you
talk etc. but behind it all there is an intelligent and sensi-
tive woman, very intelligent and sensitive and I want to
discover more. Has it ever occurred to you that it is hard
to meet a guy not because you are pushy, like you say, but
rather for your intelligence and sensitivity? I don’t know,
I think that could be it.
Recio says that “you have a spark” actually means “‘[you are]
witty and sharp.’” Recio’s message continues:
What I am missing is the directions. Look: I write you
and later, if you would like, you write me, those things
that they call “traditional” letters. What do you think? I
only ask that if I write you four, you write me one, noth-
ing more. It’s that in Barcelona I’ll see my e-mail two or
three times a week, but in Sitges maybe once, and that’s
even going to be hard because I’m going to miss you (I’m
not going to keep saying it, honestly). You don’t under-
stand because you see me like some nice person who tor-
tures you with e-mails and who you will work with, you
are kind, polite, etc but for me it is different, Michelle, I
feel so much for you, don’t you notice? Don’t you see that
I talk to you not just to pass the time, but rather because
it makes me happy? That’s how it is, and of course, I
will miss you and the other type of mail will help me to
be near you even if you don’t answer me. It’s something
caring, affectionate that doesn’t have to do with anything
else. What’s more, when you say things like what you
said about [a particular writer], I find it interesting to talk
to you. I’m going to save your message. I have to read it
better. Okay, so that you have to wait a little I’ll send the
addresses from there, that way, you don’t have to worry
about saving them or anything. Let’s see if some day you
have half of the affection that I feel for you. Let’s see. I
doubt it but oh well. Today people are just plain savage
(that’s a joke)[.]
410 	278 NeBRASKA RePORTS

Recio says that the translated words “I feel so much for you”
are too strong and should have been translated as “‘I have
developed some affection for you’” and that the phrase “it
makes me happy” actually meant “‘I feel comfortable.’”
Recio continued the message by writing:
In reference to Spain I love what you say: it’s true, we’ll
coincide there sometime and it will be great. Sometimes
I’m afraid that if you would come you would be disap-
pointed. We’ll do everything possible for that not to hap-
pen. But it’s true: there is a lot of life to live and good
times to be had and above all: introduce you to Juan who
will just faint when he sees you[.]
Recio asked evers to “[t]ell me what books you want me to
bring you and tell me what I can do to not miss you so much.”
Recio concluded by describing how she had told a friend about
evers, explaining:
I want her to help me (and everyone else too) to not
miss this wonderful girl who knows tons of stuff and
who writes and thinks like few people do . . . I’ve never
missed Omaha or the U.S., this time, I will. You see and
you’re telling me that I’m going to have a great time. I’ll
have a good time but you know, you won’t be there. I told
you that I’m obsessive (but don’t freak out, I’m not like
Jeffrey Dohmer, is that how you write his name?) and
when I really like someone I’m like that, this doesn’t usu-
ally happen to me.
Recio asserts that “when I really like someone” should have
been translated as “‘when I am impressed by someone.’”
Recio’s next message, sent the next day, began by asking:
Where are you? The truth is, I’ve been going on all
day without any news from you and it’s making me crazy.
Have you heard of a drug called “Michelle,” I have an
addiction to it now. It’s just that I’m not going to be here
much longer to talk with my pal and I’m a little down
about it.
Recio says that “it’s making me crazy” actually meant “‘I
am annoyed.’”
Recio went on to write that she was not disappointed with
evers’ desire to marry and start a family:
ReCIO v. eveRS 	411
Cite as 278 Neb. 405

You should know by now after all we’ve talked about that
it would have to be something really huge to disappoint
me. It would be impossible. On the contrary: what worries
me is how good I feel with you . . . do you thin[k] that I
should separate myself a little from you to see you more
distantly? Do you think it would be good if I were to
disappear in Spain and show up again in August? I don’t
know. I admire you and I love talking to you and leaving
is making me feel badly. Maybe you would advise me
to take some distance . . . I’m going to make you crazy.
Pardon me for talking like that but I’m a little tired.
I don’t know if I should have told you that. But I know
you’ll understand and give me your opinion, you have
nothing to lose. Maybe it’s just my tiredness and lack of
control and courtesy on my part. Hey, I’m sorry. Please,
don’t get mad, okay? Before getting mad, think about this
person talking to you who really holds you in esteem and
who doesn’t have bad intentions. Okay? But what do you
want, I feel phenomenal with you. Yes.
Recio’s next message, sent the next day, was much shorter.
Recio wrote:
You are right, I’m exaggerating. Don’t pay any atten-
tion to me. The truth is, I deserve a cake (I’ve behaved
in a silly way)[.] Thanks for scolding me, I think that in
Spain I’ll get back to my common senses. . . . Can I write
you these days even if you don’t answer because you’re
busy? . . . Okay! Come on, don’t get mad.
That afternoon, Recio wrote:
I answered your message and you didn’t answer me,
especially knowing what I said to you yesterday. . . . I
thought that you weren’t answering me because you were
busy writing your dissertation. You know what? Yes, I am
nervous, impatient and what’s more I get desperate with
people who I care for, but these defects, I think they are
small in the face of some of the virtues that I’ve shown.
I think you need a different type of person different
than me. . . .
Your hard attitude has insulted me. You know, it’s bet-
ter just to be colleagues in our work and that’s it. Don’t
412 	278 NeBRASKA RePORTS

give me any lessons and I’m sorry for having been so
sincere and sentimental with you. But I don’t want to deal
with a person so tough who forgets all my good traits for
one little error. Thanks for the punch. We’ll see each other
(what choice do we have?) in August.
The final e-mail was sent several days later, apparently
responding to another message from evers. Recio wrote:
I was offended because you told me you were writing
your dissertation, you embarrassed me (by not answering
my email) and it hurt me because I was busting my head
to figure out how to get used to having less contact with
you (since it would be hard in Sitges to have e-mail, etc).
I don’t know, maybe it wasn’t that big of a deal. I don’t
know. But what I do know is that, I don’t understand you
and you don’t understand me. It would be better to be in
person to see if we can communicate. I’m not mad any-
more but I’m scared, because I’m not like all these proud
imbeciles here. They have fucked me enough around here.
I want peace with you and the best is to wait to see each
other because from a distance I am afraid.
Recio claims that “you embarrassed me” actually meant “‘you
told me a big lie’” and that “maybe it wasn’t that big of a deal”
actually meant “‘maybe it was not a lie.’” Recio also claims
that the profanity attributed to her no longer carries its literal
meaning in Spanish and is no longer particularly profane;
rather, it means “‘to annoy, pester.’” (For example, an equiva-
lent english idiom might be to “screw with” someone.)
Recio concluded:
Thanks for wishing me a good trip. The truth is, I
need to rest. We’ll see each other in August and with
peace, and pardon me if I reacted like that but it’s just
that it hurt me like a pair of swords in my side, I don’t
know why but that’s what I felt. Let’s just leave it at
that. It isn’t important. Good luck with your dissertation
and now let’s be in peace and harmony, nothing ever
happened. You can blame my emotional immaturity or
whatever you like.
But everything’s alright, eh? Nothing happened. August
is just around the corner.
ReCIO v. eveRS 	413
Cite as 278 Neb. 405

evers’ sexual harassment comPlaint
evers began teaching at Creighton in the fall of 2001 and did
not have much contact with Recio for several months. Recio
was on sabbatical during the 2002-03 academic year. Recio
returned in the fall of 2003.
It is apparent from the record that the faculty in the
Department did not get along with one another. On February
10, 2004, the Spanish section of the Department held a separate
meeting. The Department chair, Thomas Coffey, attempted to
preside over the meeting, and Recio objected because Coffey
was primarily a French professor. The meeting became conten-
tious, and evers walked out, returned, then walked out again.
On February 12, Recio sent an e-mail to Coffey and Creighton
administrators, complaining about evers’ conduct at the meet-
ing. On February 13, evers and three other members of the
Spanish faculty sent a letter to Coffey complaining about
Recio’s conduct at the meeting and other alleged emotional
outbursts by Recio.
A few days later, evers provided Coffey, the dean of
Creighton’s college of arts and sciences, and the Creighton
legal department with copies of Recio’s 2001 e-mails to her.
evers later contacted the chairperson of Creighton’s sexual
harassment committee and Creighton’s affirmative action offi-
cer. On March 17, 2004, evers filed a complaint with the
sexual harassment committee, attaching the e-mails and her
translations of them. The sexual harassment complaint also set
forth a “Timeline of Incidents with . . . Recio,” describing the
events listed above, and other instances in which evers alleged
Recio had behaved inappropriately. The complaint also stated
that Recio’s “frequent public outbursts” created a hostile envi-
ronment for anyone required to work with her and that because
evers did not want to have any further contact with Recio,
evers suggested that “the only adequate solution would be to
dismiss . . . Recio from the faculty and remove her presence
from” the Department.
The sexual harassment committee held five meetings and
heard evidence from evers, Recio, several other faculty mem-
bers, and one student. Other members of the faculty reviewed
the e-mails in Spanish. A member of the faculty of Creighton’s
414 	278 NeBRASKA RePORTS

college of business administration, who was a friend of Recio’s
and apparently fluent in Spanish, said that the e-mails could be
“‘explained away by culture and effusiveness.’” But members
of the Department’s Spanish faculty believed that the e-mails
were inappropriate, even accounting for cultural differences.
The committee found that Recio’s messages were inappro-
priate, noting that “[w]itnesses from various Hispanic cultures
including Cuba, venezuela, Spain, and Puerto Rico differed
with . . . Recio’s interpretation that culture could be used to
explain away” the e-mails and had described them as “inappro-
priate, shocking, and of a sexual nature.” The committee found
that “[a]t best, the emails in their intensity and obsessiveness
are ominous and caused . . . evers great distress.” The com-
mittee also noted several other incidents, including a sexual
harassment complaint against Recio and “difficulties” that had
allegedly occurred when Recio had been at another university,
and personal behavior toward other new faculty members. The
committee noted that “departmental witnesses described her
in the following terms: obsessive, a bully, aggressive, irra-
tional, . . . demanding, creates conflict, stalking, retaliates,
rages, verbal violence, explosive, forceful and creates a hostile
work environment.”
The committee concluded that
the emails constituted sexual harassment and a hostile
environment by displaying a pattern of obsessive behav-
ior which created discomfort and distress for . . . evers.
The committee believes the implicit sexual overtones and
the aggressive, demanding tone of the emails reflected a
need by . . . Recio to create a sense of power in this rela-
tionship. It is inconceivable that a senior member of the
Creighton . . . faculty would write these words to a new
faculty member.
The committee also found that the February 12, 2004, let-
ter that Recio wrote, complaining about evers, “borders on
retaliation” for not responding to Recio’s advances. And the
committee found that Recio “displayed a pattern of obsessive,
aggressive and retaliatory behavior” toward evers and that
Recio’s “long-standing unprofessional behavior has contributed
to a dysfunctional and hostile academic environment for the
ReCIO v. eveRS 	415
Cite as 278 Neb. 405

entire department that continues constantly to be addressed by
the administration.” The committee unanimously recommended
to Creighton’s president, Fr. John P. Schlegel, S.J., that Recio’s
employment be immediately terminated.
Schlegel agreed with many of the committee’s conclusions,
but decided, in a letter dated May 12, 2004, that the case was
“much more than a sexual harassment case” and stated that
his “recommendations for action reflect that fact.” Schlegel
concluded that “Recio would benefit from a program of psy-
chological counseling and educational programs on commu-
nication, appropriate interactions with others, teamwork, etc.”
Schlegel placed Recio on a term of probation of a little more
than a year and directed her to have no contact or communica-
tion with evers. Recio was directed to commence a psychologi-
cal counseling program, at her cost, and to attend educational
programs recommended by the dean of Creighton’s college of
arts and sciences.
district court P roceedings
On May 4, 2006, Recio filed a complaint against evers in
the district court, alleging a claim for tortious interference with
a business relationship. Recio alleged that the e-mails support-
ing evers’ sexual harassment claim had been translated “in a
misleading manner in order to create a distorted impression
of suggestive content.” Recio alleged that “evers’ spurious
allegations of sexual harassment were made with malicious
intent and without justification in order to damage and disrupt
Recio’s contractual employment . . . .” And Recio alleged that
“[a]s a proximate [result] of evers’ interference with Recio’s
contractual relations,” Recio was put on probation and suffered,
among other things, lost salary, costs of counseling, damage
to her reputation, emotional distress, and “renegotiation terms
and conditions different from [those of] similarly situated
colleagues.” In her answer, as an affirmative defense, evers
alleged that her submission of the sexual harassment complaint
was privileged.
The district court granted evers’ motion for summary judg-
ment, finding “no evidence that the [sexual harassment] com-
plaint filed by [evers] was made in bad faith or with malice.”
416 	278 NeBRASKA RePORTS

The court also stated that “it would defeat the sexual harass-
ment policy of Creighton . . . to allow an employee who in
good faith files a valid sexual harassment complaint to be sued
for tortious interference with employment by the individual
who harassed her.” Thus, the court stated that evers’ actions
“were privileged and that no genuine issues of material fact
exist.” The court dismissed Recio’s claim with prejudice.
ASSIGNMeNTS OF eRROR
Recio assigns, as consolidated, that the district court erred
in (1) finding that evers’ sexual harassment complaint was
privileged as a matter of law, (2) finding that there were no dis-
puted material facts or inferences deducible from those facts as
to whether evers acted in bad faith or with malice in charging
Recio with sexual harassment, and (3) claiming that there was
no evidence that evers interfered with Recio’s employment or
caused her harm.
STANDARD OF RevIeW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genu-
ine issue as to any material fact 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.1 In reviewing a sum-
mary judgment, an appellate court views the evidence in the
light most favorable to the party against whom the judgment is
granted and gives such party the benefit of all favorable infer-
ences deducible from the evidence.2
ANALYSIS
tortious interference with Business relationshiP
[3,4] Before discussing Recio’s arguments in detail, it will
be helpful to review some of the basic propositions of law
relating to a claim for tortious interference with a business
relationship. To succeed on a claim for tortious interference
with a business relationship or expectancy, a plaintiff must
1 Schuyler Co-op Assn. v. Sahs, 276 Neb. 578, 755 N.W.2d 802 (2008).
2 Id.
ReCIO v. eveRS 	417
Cite as 278 Neb. 405

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 One of the basic
elements of tortious interference with a business relationship
requires an intentional act which induces or causes a breach or
termination of the relationship.4
It is not entirely clear, in this case, whether Recio is claiming
that evers’ act of interference was directed at Creighton or at
Recio—in other words, whether evers’ alleged act of interfer-
ence made Creighton breach its employment relationship with
Recio or made Recio’s performance of her employment obliga-
tions more difficult.5 For purposes of our analysis, we assume
that Recio stated a claim for relief with respect to breach of the
employment relationship, even though Creighton has clearly
not terminated Recio’s employment and Recio only pled that
her performance of her obligations under that agreement had
been made more difficult.6 We need not resolve this ambiguity,
because we conclude that in any event, evers’ alleged act of
interference was justified.
Justification for P rovision of truthful information
[5] In order to be actionable, interference with a busi-
ness relationship must be both intentional and unjustified.7 An
intentional, but justified, act of interference will not subject the
interferer to liability.8
3 Aon Consulting v. Midlands Fin. Benefits, 275 Neb. 642, 748 N.W.2d 626
(2008).
4 Wiekhorst Bros. Excav. & Equip. v. Ludewig, 247 Neb. 547, 529 N.W.2d
33 (1995).
5 See Pettit v. Paxton, 255 Neb. 279, 583 N.W.2d 604 (1998).
6 But see, e.g., George A. Fuller Co. v. Chicago Col. of Ost. Med., 719 F.2d
1326 (7th Cir. 1983). Cf. Pettit, supra note 5.
7 Aon Consulting, supra note 3.
8 Wiekhorst Bros. Excav. & Equip., supra note 4.
418 	278 NeBRASKA RePORTS

[6] We have expressly adopted the seven-factor balanc-
ing test of the Restatement (Second) of Torts § 7679 for
use in determining whether interference is “unjustified” under
Nebraska law. 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 inter-
feres, (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 proxim-
ity or remoteness of the actor’s conduct to the interference, and
(7) the relations between the parties.10
These are the important factors to be weighed against each
other and balanced in arriving at a judgment; but they do not
exhaust the list of possible factors. The issue in each case is
whether or not the interference is improper under the circum-
stances; whether, upon a consideration of the relative signifi-
cance of the factors involved, the conduct should be permitted
without liability, despite its effect of harm to another. The
decision depends upon a judgment and choice of values in
each situation.11
Section 772 of the Restatement contains a “special applica-
tion of the general test” stated in § 767.12 It provides:
One who intentionally causes a third person not to
perform a contract or not to enter into a prospective con-
tractual relation with another does not interfere improp-
erly with the other’s contractual relation, by giving the
third person
(a) truthful information, or
(b) honest advice within the scope of a request for
the advice.13
9 See, Restatement (Second) of Torts § 767 (1979); Huff v. Swartz, 258 Neb.
820, 606 N.W.2d 461 (2000).
10 Aon Consulting, supra note 3.
11 See id.
12 See Restatement, supra note 9, § 772, comment a. at 50.
13 Restatement, supra note 9, § 772.
ReCIO v. eveRS 	419
Cite as 278 Neb. 405

This is true even if the facts are marshaled in such a way
that they speak for themselves and are immediately recog-
nized as a basis for breaching the contract.14 Simply put,
if the information provided is truthful, the interference is
not “improper.”15
Based on that reasoning, the general rule is that an action
for tortious interference with a business relationship will not
lie where the substance of the alleged interference is the pro-
vision of truthful information.16 Society has a strong interest
in promoting the transmission of truthful information, and
the factors enumerated in § 767 weigh in favor of permitting
such conduct without liability. When truthful information pro-
vides the basis for a termination of a business relationship,
the resulting liability, if any, should rest on the party who
made an informed choice to terminate the relationship—not
the party who provided the facts upon which that decision
was based.
Although we have never expressly adopted the principle
expressed in § 772(a), we implicitly endorsed it in DeLay
First Nat. Bank & Trust Co. v. Jacobson Appliance Co.,17
in which we held that a creditor’s communications with a
debtor’s suppliers did not support a claim for defamation or
tortious interference with a business relationship when the
communications at issue were truthful. We also implicitly
14 Id., comment b. See, also, W. Page Keeton et al., Prosser and Keeton on
the Law of Torts § 129 (5th ed. 1984).
15 See id.
16 See, e.g., Worldwide Primates, Inc. v. McGreal, 26 F.3d 1089 (11th Cir.
1994); Tiernan v. Charleston Area Medical Center, 203 W. va. 135, 506
S.e.2d 578 (1998); Dyer v. Bergman & Associates, Inc., 657 A.2d 1132
(D.C. 1995); Four Nines Gold, Inc. v. 71 Const., Inc., 809 P.2d 236 (Wyo.
1991); Montrone v. Maxfield, 122 N.H. 724, 449 A.2d 1216 (1982);
Cohen v. Battaglia, 41 Kan. App. 2d 386, 202 P.3d 87 (2009); Kutcher
v. Zimmerman, 87 Haw. 394, 957 P.2d 1076 (Haw. App. 1998); Savage
v. Pacific Gas and Elec. Co., 21 Cal. App. 4th 434, 26 Cal. Rptr. 2d 305
(1994); Liebe v. City Finance Company, 98 Wis. 2d 10, 295 N.W.2d 16
(Wis. App. 1980).
17 DeLay First Nat. Bank & Trust Co. v. Jacobson Appliance Co., 196 Neb.
398, 243 N.W.2d 745 (1976).
420 	278 NeBRASKA RePORTS

adopted § 772(b), protecting the giving of honest advice, in
Wiekhorst Bros. Excav. & Equip. v. Ludewig.18 And we have
expressly adopted other “special application[s]” of § 767.19
Simply stated, we have already adopted § 767 and its related
sections; the special application of § 767 set forth in § 772(a)
is not only well recognized and sensible, but necessary for our
law to be consistent.20
[7] Therefore, we now expressly hold that as stated in
§ 772(a), a person does not incur liability for interfering
with a business relationship by giving truthful information to
another.21 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.22
In this case, Recio’s brief sets forth, at length, supposed
factual inconsistencies and improper behavior on the part of
evers, other Department faculty, and Creighton administra-
tors. Generally, Recio’s brief describes a narrative in which
evers’ sexual harassment complaint is only part of a larger
campaign of persecution directed at Recio by Creighton and
her colleagues in the Department. As noted above, the record
reflects a substantial amount of discord in the Department.
But it does not support the construction put upon it by Recio.
Most pertinently, there is nothing in the record that substan-
tially contradicts the factual basis of evers’ sexual harass-
ment complaint.
[8] And despite Recio’s attempts to broaden the issues in
this case, our analysis is limited by Recio’s pleadings to the
18 Wiekhorst Bros. Excav. & Equip., supra note 4.
19 See, Miller Chemical Co., Inc. v. Tams, 211 Neb. 837, 320 N.W.2d 759
(1982), disapproved on other grounds, Matheson v. Stork, 239 Neb. 547,
477 N.W.2d 156 (1991); Restatement, supra note 9, §§ 768 and 772, com-
ment a. at 50.
20 See, Cohen, supra note 16; Liebe, supra note 16.
21 See, Savage, supra note 16; Restatement, supra note 9, § 772, comment b.
at 50.
22 See Restatement, supra note 9, § 772, comment b.
ReCIO v. eveRS 	421
Cite as 278 Neb. 405

content and effect of evers’ sexual harassment complaint. The
purpose of pleadings is to frame the issues upon which a cause
of action is to be tried, and the issues in a given case will be
limited to those which are pled.23 And the only act evers is
alleged to have committed that affected Recio’s employment
relationship with Creighton was the sexual harassment com-
plaint. To the extent that Recio’s pleading can be read to allege
that evers made Recio’s performance of her job obligations
more difficult, such a claim fails because there is no evidence
that Recio suffered a pecuniary loss from her alleged inability
to perform any contractual duties.24 In other words, the only
damages alleged in Recio’s pleadings that can be attributed to
evers’ alleged interference with Recio’s employment resulted
from the sexual harassment complaint. So, we focus on whether
the sexual harassment complaint was justified under the prin-
ciples of § 772(a).
The essence of Recio’s argument is the contention that “evers
made false, inflated and fabricated claims against Recio.”25 But
Recio’s brief, and the record as a whole, are notably short on
instances in which evers’ complaint was demonstrably false.
Most importantly, Recio does not deny sending the e-mails that
formed the basis and bulk of the complaint. Recio said that she
did not clearly remember the content of the e-mails. She also
denied that they had sexual overtones and objected to their lack
of context, i.e., evers’ failure to retain or provide other e-mails
that evers and Recio had sent to one another. And Recio com-
plains about the “misleading manner” of evers’ translations of
the e-mails.
But these arguments do not establish any genuine issue of
material fact about whether Recio sent the e-mails at issue.
While Recio claimed not to remember their content clearly, she
did not deny sending them and generally accepted them as pre-
sented. Recio denied that the e-mails constituted “sexual harass-
ment” within the meaning of the relevant Creighton sexual
23 Destiny 98 TD v. Miodowski, 269 Neb. 427, 693 N.W.2d 278 (2005).
24 See, Pettit, supra note 5; Restatement, supra note 9, § 766A.
25 Brief for appellant at 47.
422 	278 NeBRASKA RePORTS

harassment policy, but that is in essence a legal conclusion,
not a denial of the underlying conduct that was the gravamen
of evers’ complaint. And Recio’s speculation about evers’
translation of the e-mails is unsupported. Recio’s criticisms
about various words and phrases are largely semantic—Recio’s
alternative translations, in our view, are not meaningfully dif-
ferent. And evers’ sexual harassment complaint also included
the original, untranslated e-mails—thereby defeating the sug-
gestion that evers intended to mislead the sexual harassment
committee about what Recio had actually written.
We also are not persuaded by the suggestion in Recio’s
brief that evers’ e-mails showed that the content of Recio’s
messages was “in essence no different from that of evers’ cor-
respondence - - perhaps effusive or at times melodramatic to
an Anglo reader, but in no way threatening or sexually harass-
ing.”26 Those e-mails have not been reproduced here, because,
contrary to Recio’s suggestion, we do not find them to be par-
ticularly relevant. They are friendly and often conclude with
traditional Catalan salutations meaning such things as “a big
hug” or “a kiss.” But they do not resemble Recio’s messages in
any relevant respect, and the suggestion that they are similar is
an exaggeration.
Nor is there evidence that the “Timeline of Incidents with
. . . Recio” attached to the sexual harassment complaint was
substantially untruthful. Recio testified that she did not recall
some of the events, and she interpreted some of the events
differently. But she did not materially dispute any of them.
Instead, Recio attempts to manufacture falsehoods out of dis-
crepancies in the record on facts such as whether the e-mails
were sent before or after evers accepted Creighton’s offer of
employment, whether she told anyone at Creighton about the
e-mails before February 2004, and whether she communicated
with Creighton’s affirmative action officer before or after she
contacted the chair of the sexual harassment committee. But
those inconsistencies are either inconsequential or explained by
the record. Creighton did not place Recio on probation because
26 Id. at 32.
ReCIO v. eveRS 	423
Cite as 278 Neb. 405

of any of those facts. Creighton placed Recio on probation
because of a series of e-mails that Recio did not deny sending
and a sequence of events that Recio did not materially dispute.
The factual disputes that Recio notes are simply not issues of
material fact.
At oral argument, Recio also intimated that evers’ testimony
to the sexual harassment committee formed some basis for lia-
bility. This argument is unavailing, for many of the reasons set
forth above. evers’ testimony was neither materially inconsist-
ent with her complaint nor denied in any relevant respect—but
most significantly, her committee testimony was not placed at
issue by Recio’s pleadings, nor was it clearly implicated by
Recio’s appellate brief. We reject Recio’s belated attempt to
bring it into contention.
In short, we find that evers’ sexual harassment complaint
was justified, as providing truthful information to Creighton.
The incidents upon which Creighton’s disciplinary decision
was based were, according to Recio, misunderstood. But they
were not denied, and the record evidences no genuine issue of
material fact about whether those incidents actually took place.
The district court did not err in concluding that evers’ com-
plaint was justified, and therefore, we find no merit to Recio’s
first assignment of error.
actual malice
In support of her second assignment of error, Recio argues
generally that there is a genuine issue of material fact as to
whether evers’ complaint was made maliciously. In support,
she relies on Restatement sections that relate to defamation
actions and generally describe the ways in which a conditional
privilege may be abused.27 And in Nebraska, by statute, truth
is a defense to a claim of libel or slander “unless it shall be
proved by the plaintiff that the publication was made with
actual malice.”28 Recio contends there is evidence that evers’
27 See Restatement, supra note 9, § 600 et seq.
28 Neb. Rev. Stat. § 25-840 (Reissue 2008). See, also, Neb. Const. art. I,
§ 5.
424 	278 NeBRASKA RePORTS

complaint, even if truthful, was motivated by actual malice. So,
Recio argues, evers’ complaint was not justified.
But Recio’s argument in that regard is unavailing. To begin
with, while actual malice may defeat a conditional privilege
defense against a defamation claim, it is not at all clear that
the same principles apply to a justification defense against a
claim of tortious interference with a business relationship. We
have, in fact, specifically disapproved any suggestion that an
intentional but justified interference may subject the interfer-
ing party to liability.29 And 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 under § 767 of the Restatement.30 In general,
§ 772(a) does not permit any liability to be imposed for the
communication of truthful information.31
[9,10] But even if we consider Recio’s actual malice argu-
ment, it is unsupported by the record. Actual malice may not
be presumed from a communication.32 And actual malice, in
this context, is defined as “hate, spite, or ill will.”33 Actual
malice requires that the defendant act with a desire to harm
the plaintiff that is unrelated to a desire to protect the act-
ing party’s rights and which is not reasonably related to the
defense of a recognized property or social interest.34 That stan-
dard is not met here—aside from Recio’s speculation, there is
insufficient evidence to support a finding that evers’ complaint
was entirely motivated by malice. Recio’s opinion as to evers’
motive will not support a finding that evers acted with actual
29 Matheson, supra note 19.
30 Huff, supra note 9.
31 See Cohen, supra note 16.
32 See, Helmstadter v. North Am. Biological, 5 Neb. App. 440, 559 N.W.2d
794 (1997); § 25-840.
33 Young v. First United Bank of Bellevue, 246 Neb. 43, 48, 516 N.W.2d 256,
259 (1994). Accord Turner v. Welliver, 226 Neb. 275, 411 N.W.2d 298
(1987).
34 In re Estate of Albergo, 275 Ill. App. 3d 439, 656 N.e.2d 97, 211 Ill. Dec.
905 (1995). See, also, Huff, supra note 9; Tams, supra note 19.
ReCIO v. eveRS 	425
Cite as 278 Neb. 405

malice and does not preclude summary judgment in evers’
favor.35 Conclusions based on guess, speculation, conjecture, or
a choice of possibilities do not create material issues of fact for
purposes of summary judgment.36
[11-14] Recio relies on the allegation in her pleadings that
evers acted maliciously and seems to suggest that whether a
defendant acted maliciously is always a question for the trier
of fact precluding summary judgment. But while actual malice
is generally an issue of fact,37 there is a difference between an
“issue of fact” and a “genuine issue as to any material fact”
within the meaning of Neb. Rev. Stat. § 25-1332 (Reissue
2008) (emphasis supplied).38 The primary purpose of the sum-
mary judgment procedure is to pierce the allegations in the
pleadings and show conclusively that the controlling facts are
other than as pled.39 Simply alleging an issue of fact is insuf-
ficient to defeat a motion for summary judgment.40 Therefore,
the district court did not err in finding no genuine issue of
material fact relating to actual malice. Recio’s second assign-
ment of error is without merit.
remaining issues
[15] Having concluded that evers is not liable to Recio
based on evers’ sexual harassment complaint, we need not
consider whether the complaint caused any harm to Recio. An
appellate court is not obligated to engage in an analysis which
is not needed to adjudicate the controversy before it.41 And in
support of her argument that her sexual harassment complaint
was justified, evers relied on a conditional privilege that some
35 See, Young, supra note 33; White v. Ardan, Inc., 230 Neb. 11, 430 N.W.2d
27 (1988).
36 Marksmeier v. McGregor Corp., 272 Neb. 401, 722 N.W.2d 65 (2006).
37 See Helmstadter, supra note 32.
38 New Tek Mfg. v. Beehner, 270 Neb. 264, 702 N.W.2d 336 (2005).
39 Id.
40 See id.
41 Concrete Indus. v. Nebraska Dept. of Rev., 277 Neb. 897, 766 N.W.2d 103
(2009).
426 	278 NeBRASKA RePORTS

courts have applied to sexual harassment complaints.42 In view
of our analysis above, we need not discuss whether we would
adopt such a privilege.43
Finally, we note Recio’s argument that Creighton’s pro-
cedures for handling evers’ sexual harassment complaint were
flawed. At oral argument, Recio characterized the Creighton
sexual harassment committee as a “kangaroo court.” It is
not at all clear how this argument relates to Recio’s claim
against evers or provides any basis for a finding of liability.
If Creighton treated Recio unfairly in resolving evers’ sexual
harassment complaint, that would support a claim against
Creighton, not evers. And Recio’s claims against Creighton
were brought by and decided against her in federal court.44
CONCLUSION
We conclude that a person cannot incur liability for interfer-
ing with a business relationship by giving truthful information
to another. In this case, Recio’s claim for tortious interference
with a business relationship rested on evers’ sexual harassment
complaint, and the record establishes that the material allega-
tions of evers’ complaint were truthful. And even if actual
malice can defeat a defense that interference with a business
relationship was justified, there is insufficient evidence in the
record to show that evers’ sexual harassment complaint was
motivated by actual malice. Therefore, the district court cor-
rectly concluded that evers’ sexual harassment complaint was
justified. The court’s judgment is affirmed.
affirmed.
42 See, e.g., Cole v. Chandler, 752 A.2d 1189 (Me. 2000); Vickers v. Abbott
Laboratories, 308 Ill. App. 3d 393, 719 N.e.2d 1101, 241 Ill. Dec. 698
(1999).
43 See Concrete Indus., supra note 41.
44 See Recio v. Creighton University, 521 F.3d 934 (8th Cir. 2008) (affirming
No. 8:06Cv361, 2007 WL 1560323 (D. Neb. May 29, 2007)).
ReCIO v. eveRS 	427
Cite as 278 Neb. 405