Choice Homes v. Donner , 311 Neb. 835 ( 2022 )


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    www.nebraska.gov/apps-courts-epub/
    09/02/2022 01:06 AM CDT
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    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 sum-
    mary 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 inter-
    pretation 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 plead-
    ings and admitted evidence de novo.
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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 circum-
    stances 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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    CHOICE HOMES v. DONNER
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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 expecta-
    tions 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 prop-
    erty 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 fac-
    tual 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 pro-
    vide 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 ero-
    sion 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 con-
    struction 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 bro-
    kers, 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 com-
    plaint, 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 buy-
    ers) 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” loca-
    tion during Nebraska football games. Jackson passed away
    in January 2019—less than a month after the buyers pur-
    chased 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 communi-
    cated 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 prob-
    lems 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 prop-
    erty 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 contrac-
    tor 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 com-
    pleted 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 buy-
    ers. 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 pre-
    pare and deliver these documents to the buyers. However, the
    buyers denied receiving them.
    Additionally, Choice never completed its own seller’s dis-
    closure statement. Choice provided the owners’ seller disclo-
    sure 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 reaffirm-
    ing his representation that the property no longer suffered from
    erosion issues. Gillman stated, “What I will call you this morn-
    ing 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 com-
    municated 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 pur-
    chase 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 pur-
    chase agreement.
    (d) Aftermath
    In November 2018, the owners communicated with the buy-
    ers 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 con-
    venience, we quote the review in full in the analysis section.
    3. District Court
    Choice sued Donner, both as an individual and in her capac-
    ity 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 pur-
    chase 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 defa-
    mation, 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) defama-
    tion. 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 prop-
    erty 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 agree-
    ment 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 evi-
    dence 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 com-
    pensation for facilitating the sale of the property. Donner also
    argued that her statements in the review did not constitute defa-
    mation, 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 com-
    mission 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 excep-
    tion to the Act—and therefore, its nondefamation claims were
    not barred. 2
    (c) Ruling
    The court “granted in full” Donner’s motion for sum-
    mary 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 receiv-
    ing the same from another,’ ‘negotiated . . . [the] sale, pur-
    chase[,] 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 testi-
    fied in his deposition that he believed Choice suffered dam-
    ages 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 disclo-
    sure 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 negoti-
    ated 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 opposi-
    tion to Donner’s motion for summary judgment (Gillman’s
    affidavit). The court noted, however, that Gillman never dis-
    cussed 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]ind-
    ings” to individually justify the dismissal of each nondefama-
    tion 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 state-
    ments 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 defama-
    tion, 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 sus-
    tained 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 previ-
    ously 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 ele-
    ments 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 reason-
    able 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 col-
    lecting 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 non-
    licensees. “No action or suit shall be instituted, nor recovery
    be had, in any court of this state by any person for com-
    pensation 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 compen-
    sation 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 pros-
    pects 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 her-
    self 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]ommit-
    ting 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 non-
    defamation 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 refer-
    ence to property owned” by Choice applies here. 16
    [5-7] Answering these questions requires statutory interpre-
    tation, 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 identifica-
    tion 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 admit-
    ted 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 own-
    ers and buyers. It
    •  procured prospective buyers for the owners,
    •  solicited the sale of the property to the buyers,
    •  found the buyers’ “dream property for them,”
    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 property]
    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, and
    •  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 compensa-
    tion 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 com-
    pensation 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 compen-
    sated 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 pur-
    chase 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 “prop-
    erty owned,” 36 its plain and ordinary meaning includes equi-
    table 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 pro-
    hibited 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 own-
    ership interest in the property.
    Choice performed multiple prohibited acts before and after
    it owned the property. Choice solicited the sale of the prop-
    erty, 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 summa-
    rizing 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 capaci-
    ties. 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 pub-
    lished 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 impres-
    sions’” 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 asser-
    tion 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 under-
    stood the allegation to be a statement of fact. 50 As we then
    stated, in determining whether a statement implies a prov-
    ably false factual assertion, both the language of the state-
    ment 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 fac-
    tors 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 addi-
    tion 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 argu-
    ments, 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 undis-
    putedly true should be considered defamatory, because it
    did not need to prove malice. Choice contends that a plain-
    tiff 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 aver-
    age 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 evi-
    dence 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 . . . Gillman
    of Choice.”
    •  “We the mistake of trusting him, signed a property con-
    tract with him, and when [Jackson] suddenly passed away,
    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 man.”
    •  “Everything I have said is true, you can contact me through
    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 commu-
    nication 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 trustworthi-
    ness. 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 suf-
    fer 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 defa-
    mation 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 prohib-
    ited 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 dis-
    trict court.
    Affirmed.
    Miller-Lerman, J., not participating.