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Cite as 312 Neb. 58

Mark 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 determinations 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 ruling and reviews de novo the court’s ultimate determination to admit evidence 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 independently of the determination reached by the court below.

6. Trial: Evidence: Appeal and Error. An objection based upon insufficient 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.

Nebraska Supreme Court Online Library

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

09/30/2022 09:07 AM CDT
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7. 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 incident 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 statements attributed to KONP were absolutely privileged. The 
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court 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 discussed 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 drafting 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 interfere 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 interrogatory 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 
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defamatory, 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 privilege 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 underlying 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 communications 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 statements were made in retaliation for Bellevue’s refusal to drop 

an investigation of a BPOA official. Elbert further argued that 
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the 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 affidavits 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 conspiracy failed.

STANDARD OF REVIEW

[1,2] A trial court has the discretion to determine the relevancy 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 hearsay 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 hearsay 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.
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that 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 during discovery.

As an initial matter, we note that Elbert did not object 

to paragraphs 11, 12, and 13 of Young’s affidavit on hearsay 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.
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an 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 affidavit 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).
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As 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 affidavits 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 knowledge 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 communications 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).
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liabilities. 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 production. 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 similarly 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 production 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 proceedings and, thus, should not have been afforded absolute privilege 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 reference 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.
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A century ago, in Shumway v. Warrick,

 21 we established 

what has since been characterized as the definition of “quasijudicial” for purposes of applying absolute privilege when we 

found that a letter written to the state banking board questioning the integrity of an applicant for a bank charter was 

absolutely privileged. The board was found to exercise “quasijudicial powers” because it had a statutory duty to determine 

the integrity and responsibility of persons applying for charters, 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.
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(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 quasijudicial 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 forwarded 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.
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Commission 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 proceedings in light of the Shumway definition and Kocontes attributes. 

Law enforcement agencies have a statutory duty to adopt policies regarding complaints of officer misconduct and investigate 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 present 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 looking 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).
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Public 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 function 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 complaint 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.
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matter 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” portraying 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 commit 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).
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to it for disposition. 44 The same is true as to Elbert’s civil conspiracy 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 hearing 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 investigation of a BPOA official. 48 This claim must fail insofar as 

his false light claim fails. However, Elbert also mentions having 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.
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

ELBERT V. YOUN

Cite as 312 Neb. 58

Elbert 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.