Elbert v. Young

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2022 01:06 AM CDT
- 58 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ELBERT V. YOUNG
Cite as 312 Neb. 58Mark D. Elbert, appellant, v. Gary Young
and Keating, O’Gara, Nedved &
Peters, P.C., L.L.O., appellees.
___ N.W.2d ___
Filed July 29, 2022. No. S-21-211.
1. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy and admissibility of evidence, and such deter-
minations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
2. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination to admit evi-
dence over a hearsay objection or exclude evidence on hearsay grounds.
3. 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.
4. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
5. Libel and Slander: Appeal and Error. Whether a communication is
privileged by reason of its character or the occasion on which it was
made is a question of law, which an appellate court resolves indepen-
dently of the determination reached by the court below.
6. Trial: Evidence: Appeal and Error. An objection based upon insuffi-
cient foundation is a general objection. If such an objection is overruled,
the objecting party may not complain on appeal unless (1) the ground
for exclusion was obvious without stating it or (2) the evidence was not
admissible for any purpose.
- 59 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ELBERT V. YOUNG
Cite as 312 Neb. 587. Hearsay: Words and Phrases. Hearsay is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.
8. Hearsay. An out-of-court statement is not hearsay if the proponent
offers it for a purpose other than proving the truth of the matter asserted.
9. Libel and Slander. An absolutely privileged communication is one for
which, by reason of its character or the occasion on which it was made,
no remedy exists in a civil action for defamation.
10. ____. Absolute privilege attaches to defamatory statements made inci-
dent to, and in the course of, judicial or quasi-judicial proceedings if the
defamatory matter has some relation to the proceedings.
11. Appeal and Error. An appellate court will not consider an argument or
theory raised for the first time on appeal. Thus, when an issue is raised
for the first time in an appellate court, it will be disregarded inasmuch as
a lower court cannot commit error in resolving an issue never presented
and submitted to it for disposition.
Appeal from the District Court for Sarpy County: Michael
A. Smith, Judge. Affirmed.
Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for
appellant.
Nathan D. Clark and Andre R. Barry, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., for appellees.
Miller-Lerman, Cassel, Stacy, Funke, and Freudenberg,
JJ., and Coffey, District Judge.
Funke, J.
INTRODUCTION
Mark D. Elbert, former chief of police for Bellevue,
Nebraska, appeals the order of the district court for Sarpy
County granting summary judgment to Gary Young and
Keating, O’Gara, Nedved & Peter, P.C., L.L.O. (collectively
KONP), a law firm that represents the Bellevue Police Officers
Association (BPOA) and several BPOA members. The court
found that Elbert’s defamation claim was not supported by
evidence of actual malice or special damages and certain state-
ments attributed to KONP were absolutely privileged. The
- 60 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ELBERT V. YOUNG
Cite as 312 Neb. 58court also found that Elbert’s false light claim was subsumed
in his defamation claim and that his civil conspiracy claim
failed for lack of an underlying tort. Elbert appeals. We affirm.
BACKGROUND
At a meeting on September 13, 2017, BPOA members dis-
cussed Elbert’s conduct and, by a vote of 72 to 1, expressed
“‘no confidence’” in him as the chief of police. After the
meeting, the BPOA issued a press release drafted by KONP,
asserting there was “substantial evidence” Elbert had engaged
in “dishonest and deceptive conduct” in carrying out his duties.
The press release also claimed that Elbert had initiated multiple
internal investigations of union leaders in retaliation for union
activity and made “derogatory comments towards women and
racial minorities.”
KONP subsequently completed an “Allegation/Inquiry/
Commendation” (AIC) form, which discussed the allegations
in the press release, as well as other alleged dishonesty by
Elbert, and filed it with Bellevue. KONP also assisted in draft-
ing two informal complaints that individual Bellevue Police
Department officers filed with the Nebraska Commission on
Law Enforcement and Criminal Justice (Crime Commission).
The substance of both complaints was that Elbert had instructed
employees to lie and conceal information.
Elbert filed suit against KONP in September 2018, alleging
he was defamed and placed in a false light by the press release,
AIC allegations, and Crime Commission complaints. Elbert
also alleged KONP engaged in a civil conspiracy to place him
in a false light, “harm him in his professional career, and inter-
fere with his [prospective] employment as US Marshall and the
ability to continue as a Nebraska Chief of Police.”
The parties conducted discovery, during which Elbert
responded to interrogatories regarding his defamation and
false light claims. Specifically, he responded to an interroga-
tory asking which statements by KONP were not defamatory,
but placed him in a false light, by stating: “See Answer to
Interrogatory Number 4. If these statements were not actually
- 61 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ELBERT V. YOUNG
Cite as 312 Neb. 58defamatory, at a minimum, they portrayed [Elbert] in a false
light because of [KONP’s] mischaracterization of the context
and the subject [of the] communication.” Interrogatory No. 4
asked Elbert which of KONP’s statements were either false or
portrayed him in a false light. Elbert responded that the press
release, AIC allegations, and Crime Commission complaints
were the statements he claimed were false or portrayed him in
a false light.
There were also depositions wherein counsel for Elbert
inquired about certain communications KONP had with BPOA
members. Counsel for KONP objected on attorney-client privi-
lege grounds. Elbert’s counsel mentioned moving to compel
the production of these communications when concluding the
depositions of two KONP attorneys, but no motion was filed.
KONP moved for summary judgment on the grounds that as
to Elbert’s defamation claim, there was no evidence of actual
malice or special damages and certain statements attributed to
it were absolutely privileged. KONP also asserted that Elbert’s
false light claim was subsumed in his defamation claim and
that his civil conspiracy claim failed for lack of an underly-
ing tort.
The district court held a hearing on KONP’s motion for
summary judgment, during which Elbert’s counsel objected
to the admission into evidence of paragraphs 11, 12, and 13
of the affidavit of KONP attorney Gary Young on foundation
grounds, paragraph 21 on hearsay and foundation grounds, and
“references to alleged statements of clients” on the grounds
that KONP had asserted attorney-client privilege as to its com-
munications with BPOA members during discovery. Similar
objections were made to the affidavit of KONP attorney
Thomas McCarty. The affidavits described, in general terms,
the sources of the attorneys’ information about Elbert and their
belief that the information was true.
At the hearing, Elbert also argued in opposition to KONP’s
motion for summary judgment, asserting that KONP’s state-
ments were made in retaliation for Bellevue’s refusal to drop
an investigation of a BPOA official. Elbert further argued that
- 62 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ELBERT V. YOUNG
Cite as 312 Neb. 58the case did not “fit[] within the context” of New York Times
Company v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d
686 (1964), because KONP was not a “member of the media or
the press,” Elbert was not a public figure, and the dispute did
not involve matters of “public discourse.”
The district court overruled Elbert’s objections to the affi-
davits of Young and McCarty and adopted KONP’s arguments
as to why Elbert’s defamation, false light, and civil conspiracy
claims fail on summary judgment.
Elbert appealed to the Nebraska Court of Appeals, and we
moved the matter to our docket.
ASSIGNMENTS OF ERROR
Elbert assigns, summarized and reordered, that the district
court erred in overruling his objections to the testimony of
the two KONP attorneys and in finding that certain statements
attributed to KONP were absolutely privileged, that his false
light claim was subsumed, and that his claim for civil con-
spiracy failed.
STANDARD OF REVIEW
[1,2] A trial court has the discretion to determine the rel-
evancy and admissibility of evidence, and such determinations
will not be disturbed on appeal unless they constitute an abuse
of that discretion. 1 Apart from rulings under the residual hear-
say exception, an appellate court reviews for clear error the
factual findings underpinning a trial court’s hearsay ruling and
reviews de novo the court’s ultimate determination to admit
evidence over a hearsay objection or exclude evidence on hear-
say grounds. 2
[3,4] An appellate court affirms a lower court’s grant of
sumary 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
1
Noah’s Ark Processors v. UniFirst Corp., 310 Neb. 896, 970 N.W.2d 72(2022).
2
Id.- 63 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ELBERT V. YOUNG
Cite as 312 Neb. 58that the moving party is entitled to judgment as a matter of
law. 3 In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted and gives that
party the benefit of all reasonable inferences deducible from
the evidence. 4
[5] Whether a communication is privileged by reason of its
character or the occasion on which it was made is a question
of law, which an appellate court resolves independently of the
determination reached by the court below. 5
ANALYSIS
Admission of Testimony
On appeal, Elbert argues that the district court erred in
admitting into evidence the affidavits of Young and McCarty
over his hearsay objections. Elbert asserts that the affidavits
improperly presented BPOA members’ opinions about whether
Elbert’s conduct was discriminatory or retaliatory, and he
maintains that KONP should instead have offered affidavits
from BPOA members or identified “who said it, when, in what
context, etc.” 6 Elbert also argues, in the alternative, that the
district court erred in not excluding the challenged affidavits
on foundational grounds or because KONP sought to rely
on the statements of its clients after invoking attorney-client
privilege as to its communications with BPOA members dur-
ing discovery.
As an initial matter, we note that Elbert did not object
to paragraphs 11, 12, and 13 of Young’s affidavit on hear-
say grounds at the hearing before the trial court. Rather, he
objected to these paragraphs solely on foundational grounds.
Since a party on appeal may not assert a different ground for
3
Evans v. Freedom Healthcare, 311 Neb. 336, 972 N.W.2d 75 (2022).
4
Id.5
Funk v. Lincoln-Lancaster Cty. Crime Stoppers, 294 Neb. 715, 885
N.W.2d 1 (2016).
6
Brief for appellant at 16.
- 64 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ELBERT V. YOUNG
Cite as 312 Neb. 58an objection to the admission of evidence than was offered
to the trial court, our review of these paragraphs is limited to
determining whether proper foundation was laid. 7
Elbert asserts that the district court erred in not excluding
these paragraphs, along with paragraph 21 of Young’s affida-
vit and McCarty’s affidavit, on foundational grounds, because
they contain “supposed opinions about whether someone was
telling the truth or was believable or was reasonable in their
characterizations.” 8 We disagree.
[6] An objection based upon insufficient foundation is a
general objection. 9 If such an objection is overruled, the
objecting party may not complain on appeal unless (1) the
ground for exclusion was obvious without stating it or (2)
the evidence was not admissible for any purpose. 10 Elbert has
not suggested that the ground for exclusion of the affidavits
was obvious. Nor has he argued that the affidavits were not
admissible for any purpose. As such, the district court did not
abuse its discretion in admitting the affidavits over Elbert’s
foundation objections.
[7] Insofar as Elbert maintains that the challenged affidavits
improperly seek to prove the truth of BPOA members’ beliefs
about whether his conduct was discriminatory or retaliatory,
his objection on foundational grounds appears to be tied to,
and shade into, his objection on hearsay grounds. Hearsay
is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted. 11 Hearsay is not admissible
unless otherwise provided for in the Nebraska Evidence Rules
or elsewhere. 12
7
Lindsay Internat. Sales & Serv. v. Wegener, 301 Neb. 1, 917 N.W.2d 133(2018).
8
Brief for appellant at 18.
9
Cotton v. State, 281 Neb. 789, 810 N.W.2d 132 (2011).
10
Id.11
Neb. Rev. Stat. § 27-801(3) (Cum. Supp. 2020).
12
State v. Munoz, 309 Neb. 285, 959 N.W.2d 806 (2021).
- 65 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ELBERT V. YOUNG
Cite as 312 Neb. 58As to Elbert’s hearsay objections to paragraph 21 of Young’s
affidavit and to McCarty’s affidavit, his argument is equally
unavailing because the affidavits are not hearsay. Both affi-
davits indicated that the information in the press release, the
AIC allegations, and the Crime Commission complaints were
provided by BPOA members and the attorneys believed the
information was true.
[8] By definition, an out-of-court statement is not hearsay
if the proponent offers it for a purpose other than proving the
truth of the matter asserted. 13 Thus, a statement is not hearsay
if the proponent offers it to show its impact on the listener, and
the listener’s knowledge, belief, response, or state of mind after
hearing the statement is relevant to an issue in the case. 14
Here, KONP offered the challenged affidavits to prove that
Young and McCarty “knew, trusted, and believed” the BPOA
members who had provided information about Elbert, rather
than the truth of either the BPOA members’ beliefs about
whether Elbert’s conduct was discriminatory or retaliatory or
the allegations concerning Elbert. KONP’s belief in the truth
of the BPOA members’ statements is relevant to the question
of whether it acted with “actual malice,” that is, with knowl-
edge that the statements were false or with reckless disregard
of whether they were true. 15 As such, the district court did not
abuse its discretion in admitting the challenged affidavits over
Elbert’s hearsay objections.
Finally, Elbert asserts that KONP should be barred from
relying on its clients’ statements in the affidavits, because it
asserted attorney-client privilege when asked about commu-
nications with its clients during discovery. Elbert appears to
suggest that KONP’s objections were sharp practice intended
to adversely affect a fair determination of his rights or
13
Baker-Heser v. State, 309 Neb. 979, 963 N.W.2d 59 (2021).
14
See Noah’s Ark Processors v. UniFirst Corp., supra note 1.
15
Moats v. Republican Party of Neb., 281 Neb. 411, 796 N.W.2d 584 (2011);
Hoch v. Prokop, 244 Neb. 443, 507 N.W.2d 626 (1993).
- 66 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ELBERT V. YOUNG
Cite as 312 Neb. 58liabilities. However, if Elbert wanted to challenge KONP’s
assertion of privilege as to its communications with BPOA
members, he merely needed to move to compel their pro-
duction. 16 Though his counsel mentioned a potential motion
to compel during the depositions of Young and McCarty,
Elbert never filed such a motion. Other courts have simi-
larly declined to “allow[] plaintiffs to lie in the weeds until
a motion for summary judgment is filed, and then spring the
issue,” when they could have taken action to compel produc-
tion at an earlier date. 17
Absolute Privilege
Elbert also argues that the complaints filed with the Crime
Commission and the AIC filed with the Bellevue Police
Department did not involve judicial or quasi-judicial proceed-
ings and, thus, should not have been afforded absolute privi-
lege by the trial court.
[9,10] An absolutely privileged communication is one for
which, by reason of its character or the occasion on which it
was made, no remedy exists in a civil action for defamation. 18
Absolute privilege attaches to defamatory statements made
incident to, and in the course of, judicial or quasi-judicial
proceedings if the defamatory matter has some relation to the
proceedings. 19 The relevancy of the defamatory matter is not a
technical legal relevancy but instead a general frame of refer-
ence and relationship to the subject matter of the action. 20
16
Cf. Greenwalt v. Wal-Mart Stores, 253 Neb. 32, 567 N.W.2d 560 (1997).
17
OAO Alfa Bank v. Center for Public Integrity, 387 F. Supp. 2d 20, 52 n.53
(D.D.C. 2005). See, also, Clyburn v. News World Communications, Inc.,
903 F.2d 29 (D.C. Cir. 1990) (plaintiff not appealing district court’s denial
of motion to compel source’s identity).
18
See Kocontes v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010),
abrogated on other grounds, Doe v. Board of Regents, 280 Neb. 492, 788
N.W.2d 264 (2010).
19
Id.20
Id.- 67 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ELBERT V. YOUNG
Cite as 312 Neb. 58A century ago, in Shumway v. Warrick, 21 we established
what has since been characterized as the definition of “quasi-
judicial” for purposes of applying absolute privilege when we
found that a letter written to the state banking board ques-
tioning the integrity of an applicant for a bank charter was
absolutely privileged. The board was found to exercise “quasi-
judicial powers” because it had a statutory duty to determine
the integrity and responsibility of persons applying for char-
ters, and “‘[w]hen the law commits to any officer the duty of
looking into facts and acting upon them, not in a way which it
specifically directs, but after a discretion in its nature judicial,
the function is quasi-judicial.’” 22
More recently, in Kocontes v. McQuaid, 23 we found that a
letter to the Board of Pardons opposing a pardon application
was absolutely privileged in light of the Shumway definition,
six “attributes” considered by other courts in determining
whether a body is quasi-judicial, and the public policy ration­ale
underlying the absolute privilege. We noted that the Board of
Pardons has statutory and constitutional authority to consider
applications from persons seeking pardons, along with written
statements from crime victims, and determine whether to grant
relief. 24 We also noted that it can conduct hearings pursuant to
its “guidelines” and issue subpoenas pursuant to a statute that
subjects witnesses to contempt for noncompliance. 25
As such, we found that the Board of Pardons fell within
the definition in Shumway and possessed all six attributes of a
quasi-judicial body insofar as it had
(1) the power to exercise judgment and discretion; (2) the
power to hear and determine or ascertain facts and decide;
(3) the power to make a binding order and judgment;
21
Shumway v. Warrick, 108 Neb. 652, 189 N.W. 301 (1922).
22
Id. at 656, 189 N.W. at 302.
23
Kocontes v. McQuaid, supra note 18, 279 Neb. at 341, 778 N.W.2d at 416.
24
Id.25
Id. at 347, 778 N.W.2d at 420.
- 68 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ELBERT V. YOUNG
Cite as 312 Neb. 58(4) the power to affect the personal or property rights
of private persons; (5) the power to examine witnesses,
to compel the attendance of witnesses, and to hear the
litigation of the issues at a hearing; and (6) the power to
enforce decisions or impose penalties. 26
We also found that because a pardon affects “‘the public
interest in the conviction’” by officially nullifying the legal
consequences of a crime, the public interest in free disclosure
outweighed the harm to individuals who may be defamed. 27 In
other words, the importance of persons speaking freely when
communicating with the Board of Pardons is so great that “the
law takes the risk of their abusing the occasion and speaking
maliciously as well as untruly.” 28
Here, based upon our jurisprudence, we conclude that the
informal complaints to the Crime Commission involve quasi-
judicial proceedings under the definition given in Shumway
and the attributes set forth in Kocontes. The Nebraska Police
Standards Advisory Council, with the review and approval
of the Crime Commission, has statutory authority to suspend
or revoke law enforcement officers’ certificates or diplomas
upon finding “[s]erious misconduct,” among other things. 29
Members of the public can file informal complaints with the
executive director of the Crime Commission, who reviews
them and determines whether to file a formal complaint for
hearing by the council. 30 The council’s regulations provide for
it to receive evidence, hear testimony, cause subpoenas to be
issued, and make written findings of fact, conclusions of law,
and recommendations regarding revocation, which are for-
warded to the Crime Commission for final review. 31 The Crime
26
Id. at 341, 778 N.W.2d at 416-17.
27
Id. at 352, 778 N.W.2d at 424.
28
Id. at 340, 778 N.W.2d at 416.
29
Neb. Rev. Stat. § 81-1403(6)(b) (Reissue 2014).
30
79 Neb. Admin. Code, ch. 9, §§ 005.06(1) and 006 (2012).
31
Id., §§ 007, 009, and 010.
- 69 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ELBERT V. YOUNG
Cite as 312 Neb. 58Commission must then either dismiss the complaint or revoke
the certificate upon a finding by clear and convincing evidence
that the certificate should be revoked. 32
We also conclude that the AIC submitted to the Bellevue
Police Department similarly involves quasi-judicial proceed-
ings in light of the Shumway definition and Kocontes attributes.
Law enforcement agencies have a statutory duty to adopt poli-
cies regarding complaints of officer misconduct and investi-
gate any alleged misconduct that could constitute grounds for
revocation or suspension under § 81-1403(6). 33 The Bellevue
Police Department’s AIC policy, which is included in our
record, provides for the receipt of complaints from employees
or members of the public. The policy also provides for review
of allegations; formal and informal investigations; employee
participation; findings of fact; adjudication by officers in the
chain of command, with final adjudication by the chief of
police; and disciplinary sanctions if the allegations are found to
be substantiated. The chief’s decision can be formally appealed
pursuant to the collective bargaining agreement.
Admittedly, not all attributes noted in Kocontes are pres-
ent as to an AIC. For example, the AIC investigation policy
does not provide for subpoenas to be issued or testimony to be
taken. However, key factors, most notably, the duty of look-
ing into facts and exercising discretion in acting on them, are
present. We also find it persuasive that other courts have taken
the view that complaints to police departments’ internal affairs
divisions are absolutely privileged. 34
32
Id., § 010.09.
33
See Neb. Rev. Stat. § 81-1414.14(1) and (2) (Supp. 2021).
34
See, Robinson v. Alameda County, 875 F. Supp. 2d 1029 (N.D. Cal.
2012); Craig v. Stafford Const., Inc., 271 Conn. 78, 856 A.2d 372 (2004);
Magnus v. Anpatiellos, 130 A.D. 2d 719, 516 N.Y.S.2d 31 (1987); Gray v.
Rodriguez, 481 So. 2d 1298 (Fla. App. 1986); Miner v. Novotny, 304 Md.
164, 498 A.2d 269 (1985); Lewis v. Benson, 101 Nev. 300, 701 P.2d 751(1985); Putter v. Anderson, 601 S.W.2d 73 (Tex. App. 1980). Compare
Knight v. Knight, 1 Neb. App. 430, 497 N.W.2d 692 (1992) (complaints to
police about third parties’ criminal conduct conditionally privileged).
- 70 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ELBERT V. YOUNG
Cite as 312 Neb. 58Public policy considerations further support the application
of absolute privilege to Crime Commission and internal affairs
complaints. Such complaints involve alleged misconduct by
law enforcement and, thus, can be seen to “serve a public func-
tion of vital importance by providing a mechanism through
which abuses may be reported to the proper authorities, and the
abusers held accountable.” 35
Accordingly, having determined that both an informal com-
plaint to the Crime Commission and an AIC with the Bellevue
Police Department involve a quasi-judicial proceeding, we
consider KONP’s statements to be relevant and protected by
absolute privilege. Whether KONP acted “as part of [a] plan
to destroy the career of a decorated law enforcement officer,” 36
as Elbert alleges, is immaterial. The plaintiff in Kocontes
claimed the statements opposing his pardon were made “out of
vindictiveness,” 37 while in Shumway, it was an “admitted fact
that . . . the libel defendant was actuated by malice, hatred, and
ill will.” 38 Nonetheless, absolute privilege was found to apply
in both cases.
Remaining Assignments of Error
Elbert’s remaining assignments of error are that the district
court erred in finding his false light claim was subsumed in his
defamation claim and that his civil conspiracy claim failed for
lack of an underlying tort. Both are without merit.
A person that gives publicity to a matter concerning a natural
person that places that person before the public in a false light
is subject to liability for invasion of privacy if (1) the false
light in which the other was placed would be highly offensive
to a reasonable person and (2) the actor had knowledge or
acted in reckless disregard as to the falsity of the publicized
35
Miner v. Novotny, supra note 34, 304 Md. at 176, 498 A.2d at 275. Cf.
Lewis v. Benson, supra note 34.
36
Brief for appellant at 23.
37
Kocontes v. McQuaid, supra note 18, 279 Neb. at 337, 778 N.W.2d at 414.
38
Shumway v. Warrick, supra note 21, 108 Neb. at 657, 189 N.W. at 303.
- 71 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ELBERT V. YOUNG
Cite as 312 Neb. 58matter and the false light in which the other would be placed. 39
However, if a plaintiff asserts claims of both defamation and
false light invasion of privacy based on the same statement,
the false light claim is subsumed within the defamation claim
and is not separately actionable. 40 A false light claim can only
survive as a separate cause of action if it alleges a nondefam­
atory statement. 41
Elbert’s complaint makes repeated references to KONP’s
alleged “scheme to portray [him] in a false light.” However, his
response to KONP’s interrogatories suggests that he is relying
on the same statements as the basis for both his defamation and
false light claims, with the statements “at a minimum” portray-
ing him in a false light if they “were not actually defamatory.”
What is more important, when KONP argued at the summary
judgment hearing that the false light claim was subsumed
because Elbert “has alleged that each of the statements in his
complaint are defamatory,” Elbert did not offer any opposition.
The district court agreed with KONP’s position that the false
light claim was subsumed.
[11] On appeal, Elbert maintains that he made a “distinct
claim that he was placed in a false light” 42 and cites, as an
example, KONP’s statement that his use of the nickname
“Diesel” to describe a female city employee reflected gender
bias. This argument fails because Elbert raises it for the first
time on appeal, and an appellate court will not consider an
argument or theory raised for the first time on appeal. 43 Thus,
when an issue is raised for the first time in an appellate court,
it will be disregarded inasmuch as a lower court cannot com-
mit error in resolving an issue never presented and submitted
39
Neb. Rev. Stat. § 20-204 (Reissue 2012).
40
Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816(2015).
41
Moats v. Republican Party of Neb., supra note 15.
42
Brief for appellant at 19.
43
Eletech, Inc. v. Conveyance Consulting Group, 308 Neb. 733, 956 N.W.2d
692 (2021).
- 72 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ELBERT V. YOUNG
Cite as 312 Neb. 58to it for disposition. 44 The same is true as to Elbert’s civil con-
spiracy claim.
A civil conspiracy is a combination of two or more persons
to accomplish by concerted action an unlawful or oppressive
object, or a lawful object by unlawful or oppressive means. 45
A “conspiracy” is not itself a separate and independent tort,
but, rather, depends upon the existence of an underlying tort. 46
Without such underlying tort, there can be no cause of action
for conspiracy to commit the tort. 47
Elbert alleged in his complaint that KONP conspired to place
him in a false light, “harm him in his professional career,” and
“interfere with his [prospective] employment as US Marshall
and the ability to continue as a Nebraska Chief of Police.”
However, when KONP argued in the summary judgment hear-
ing that Elbert’s claim for conspiracy failed because of the lack
of an underlying tort, Elbert did not offer any opposition based
on either his false light invasion of privacy claim or a claim
of tortious interference with economic advantage. The district
court agreed with KONP that the civil conspiracy failed for
lack of an underlying tort.
On appeal, Elbert bases his civil conspiracy claim primarily
upon his false light claim, asserting that KONP conspired with
BPOA officers to “retaliate against him and portray him in a
false light” because of Bellevue’s “refusal to drop” its inves-
tigation of a BPOA official. 48 This claim must fail insofar as
his false light claim fails. However, Elbert also mentions hav-
ing pled “attempt to engage in tortious interference with [his]
employment.” 49 This fleeting reference is unavailing, given that
44
Id.45
George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775, 947
N.W.2d 510 (2020).
46
Id.47
Id.48
Brief for appellant at 21.
49
Id. at 22.
- 73 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
ELBERT V. YOUNG
Cite as 312 Neb. 58Elbert did not argue tortious interference before the trial court
in opposing KONP’s motion for summary judgment, and an
appellate court will not consider an argument or theory raised
for the first time on appeal.
CONCLUSION
Elbert’s claims that the district court erred in admitting
certain testimony, finding his false light claim was subsumed,
finding his civil conspiracy claim failed, and finding certain
statements were absolutely privileged are without merit. As a
result, the judgment of the district court is affirmed.
Affirmed.
Heavican, C.J., and Papik, J., not participating.