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WEYERS v. COMMUNITY MEMORIAL HOSP.

Cite as 30 Neb. App. 520

Velma Weyers and Gilbert Weyers, appellants, 

v. Community Memorial Hospital, Inc., 

doing business as Syracuse Area 

Health et al., appellee.

___ N.W.2d ___

Filed January 25, 2022. No. A-21-132.

1. Summary Judgment: Appeal and Error. An appellate court will affirm 

a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts 

or as to the ultimate inferences that may be drawn from the facts and 

that the moving party is entitled to judgment as a matter of law.

2. Partnerships: Proof. The objective indicia of co-ownership are commonly considered to be (1) profit sharing, (2) control sharing, (3) loss 

sharing, (4) contribution, and (5) co-ownership of property. The five indicia of co-ownership are only that—they are not all necessary to establish 

a partnership relationship, and no single indicium of co-ownership is 

either necessary or sufficient to prove co-ownership.

3. Joint Ventures: Partnerships: Contribution. A joint venture or enterprise is in the nature of a partnership and exists when two or more 

persons contribute cash, labor, or property to a common fund with the 

intention of entering into some business or transaction for the purpose of making a profit to be shared in proportion to the respective 

contributions.

4. Joint Ventures. Each of the parties in a joint venture or enterprise must 

have equal voice in the manner of its performance and control of the 

agencies used therein, though one may entrust performance to the other.

5. Political Subdivisions Tort Claims Act: Jurisdiction. While not a 

jurisdictional prerequisite, the filing or presentment of a claim to the 

appropriate political subdivision is a condition precedent to commencement of a suit under the Political Subdivisions Tort Claims Act.

6. Health Care Providers: Claims: Political Subdivisions Tort Claims 

Act. The operation of the Nebraska Hospital-Medical Liability Act 

Nebraska Supreme Court Online Library

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

02/01/2022 12:05 AM CST
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does not excuse compliance with the requirement under the Political 

Subdivisions Tort Claims Act that a claim be presented to the political 

subdivision prior to filing suit.

7. Political Subdivisions Tort Claims Act: Limitations of Actions. For 

purposes of Neb. Rev. Stat. § 13-919(1) (Reissue 2012), a cause of 

action accrues, thereby starting the period of limitations, when a potential plaintiff discovers, or in the exercise of reasonable diligence should 

discover, the political subdivision’s negligence.

8. Equity: Estoppel. The doctrine of equitable estoppel rests largely on the 

facts and circumstances of the particular case.

9. ____: ____. The doctrine of equitable estoppel will not be invoked 

against a governmental entity except under compelling circumstances 

where right and justice so demand. In such cases, the doctrine is to be 

applied with caution and only for the purpose of preventing manifest 

injustice.

10. Equity: Estoppel: Pleadings: Appeal and Error. Equitable estoppel is 

an affirmative defense and must be raised in the pleadings to be considered by a trial court and on appeal.

11. Appeal and Error. In general, appellate courts do not consider arguments and theories 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.

12. Courts: Appeal and Error. The Nebraska Court of Appeals does not 

have authority to reverse the holdings of the Nebraska Supreme Court.

13. Malpractice: Limitations of Actions. Under the occurrence rule, a professional malpractice action accrues and the statute of limitations begins 

to run when the allegedly wrongful act or omission occurs.

14. ____: ____. Under the continuing treatment exception to the occurrence rule, the statute of limitations does not begin to run until the 

act complained of, and any resulting subsequent treatment therefor, is 

completed.

15. Negligence: Malpractice: Limitations of Actions. The continuous 

treatment doctrine applies either when there has been a misdiagnosis 

upon which incorrect treatment is given or when there has been a continuing course of negligent treatment. It does not apply where there have 

been only isolated acts of negligence.

Appeal from the District Court for Otoe County: Vicky L. 

Johnson, Judge. Affirmed.

Christopher S. Bartling, of Bartling & Hinkle, P.C., for 

appellants.
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WEYERS v. COMMUNITY MEMORIAL HOSP.

Cite as 30 Neb. App. 520

Robert A. Mooney and Emily E. Palmiscno, of Sodoro, 

Mooney & Lenaghan, L.L.C., for appellee.

Pirtle, Chief Judge, and Riedmann and Welch, Judges.

Pirtle, Chief Judge.

INTRODUCTION

The district court for Otoe County granted the motion for 

summary judgment of Community Memorial Hospital, Inc. 

(CMH, Inc.); Velma Weyers and Gilbert Weyers (collectively 

appellants) appeal from that order. For the reasons that follow, 

we affirm.

BACKGROUND

In February 2018, Velma underwent knee surgery at CMH, 

Inc., in Syracuse, Nebraska. The day after surgery, while 

Velma was recovering at the hospital, she fell from a hospital 

bed while under sedation and was injured. In December 2019, 

appellants filed a complaint against “[CMH, Inc.,] doing business as Syracuse Area Health, Community Memorial Hospital, 

and Community Memorial Hospital District.” The complaint 

alleged that Velma was entitled to compensation under theories of negligence and res ipsa loquitur, and Gilbert raised a 

related loss of consortium claim. The complaint also waived 

the right to a medical review panel “to the extent that any 

Defendant is registered and is qualified under the Nebraska 

Hospital-Medical Liability Act” (NHMLA), see Neb. Rev. Stat. 

§ 44-2801 et seq. (Reissue 2021).

In January 2020, CMH, Inc., filed a motion to dismiss or, in 

the alternative, a motion for summary judgment. Summarized, 

the motion alleged that the complaint identified the wrong 

defendant, as CMH, Inc., which is a private nonprofit corporation created to service the debt of the separate legal entity, 

Community Memorial Hospital District (CMHD). The motion 

alleged that CMH, Inc., “does not do business as Syracuse 

Area Health, Community Memorial Hospital, or [CMHD].” 

According to the motion, CMHD was the proper defendant, 
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as it was the entity that employed health care providers and 

entered into a physician-patient relationship with Velma.

The district court convened for a hearing on the motion in 

March 2020. Appellants moved for a continuance to conduct 

further discovery, which was granted. The court reconvened 

in June 2020, at which time appellants again moved for a 

continuance to conduct further discovery, which motion was 

also granted. CMH, Inc., objected to the request, noting, “This 

is a political subdivision tort claim and the political subdivision was not properly served with a claim . . . .” Appellants 

sent interrogatories, conducted depositions, and collected documentation regarding the legal relationship between the named 

defendant, CMH, Inc., and the nonparty, CMHD.

The record shows that CMHD is a “community hospital” created pursuant to Neb. Rev. Stat. § 23-3547 (Reissue 

2012) and is a political subdivision of the State of Nebraska. 

CMHD was created by resolution of the Otoe County Board 

of Commissioners in January 1973, following the results of a 

special election in June 1972. Prior to November 2018, CMHD 

operated “Community Memorial Hospital,” which was the 

hospital where Velma sustained her injury. CMHD opened a 

new hospital in November 2018 which operates as “Syracuse 

Area Health.”

CMH, Inc., filed articles of incorporation with the Nebraska 

Secretary of State in August 1992, identifying the nature of its 

business as “Medical Care Facility Leasing.” Article III of the 

1992 articles provides the following:

The exclusive purpose for which the corporation is 

organized is to provide for, erect, own, lease, furnish, 

equip and manage lands, grounds, and buildings located 

in and for the exclusive possession, use, and benefit of 

Community Memorial Hospital District, a body politic 

and corporate of the County of Otoe in the State of 

Nebraska.

Article V provides that CMH, Inc., “shall have no members” 

and “shall be managed by the Board of Directors.” Article VI 
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provides that “[a]fter payment of all outstanding liabilities 

and obligations of the corporation other than obligations to 

[CMHD], the corporation shall donate and give to [CMHD] the 

assets which the corporation then possesses.”

CMH, Inc., restated its corporate bylaws in August 2015, 

stating its purpose “to act on behalf of and for the benefit of 

[CMHD].” The 2015 bylaws reiterated that CMH, Inc., “shall 

be managed by its Board of Directors” but added the following 

provision:

[T]he Board of Directors shall not take the following 

action(s) without obtaining the prior approval of the 

[CMHD] Board of Directors:

a. Sell all or substantially all of [CMH, Inc.’s] assets.

b. Enter into any financing or loan agreement encumbering [CMH, Inc.’s] assets.

c. Enter into any affiliation agreement or other arrangement with another hospital entity.

d. Amend these Restated Bylaws.

Under the 2015 bylaws, “a Director may be removed with or 

without cause by vote of the [CMHD] Board of Directors.” 

Further, “[n]o Director shall receive compensation for his or 

her service as a Director.” The articles also provide for various 

officers and respective duties, adding that “[CMHD] employees and other individuals may assist [CMH, Inc.’s] officers in 

the performance of their duties hereunder as may be from time 

to time requested.”

The president and chief executive officer of CMHD, Michael 

Harvey, identified CMH, Inc., as a “debt-servicing corporation” which services CMHD’s debts. Harvey explained that as 

a political subdivision, CMHD cannot obtain a bank loan and 

instead would need voter approval to issue bonds if it wanted 

to take on substantial debt. However, CMH, Inc., as a private 

corporation, is able to obtain private financing without voter 

approval. Harvey explained that once CMH, Inc., obtained 

funding and purchased property, it was necessary for CMH, 

Inc., to retain ownership as “collateral for the loan.”
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The record contains two lease agreements between CMH, 

Inc., and CMHD. Under the first lease agreement and supplemental lease agreement, executed in 1992, CMH, Inc., 

leased property to CMHD for the operation of Community 

Memorial Hospital in exchange for a monthly rent payment 

of $12,100. The agreement further provided that the base rent 

could be increased “[i]n the event Basic Rent is not sufficient 

in amount” to cover payments on the outstanding loan obligations. The lease was to “continue until the payment in full of 

all principal and interest on the Notes and any indebtedness or 

obligations . . . issued to refund the Notes.” The term “‘Notes’” 

was defined as CMH, Inc.’s “Construction Notes, Series 1992, 

in the initial amount of $950,000 issued pursuant to the Trust 

Agreement.” The term “‘Trust Agreement’” was defined as “the 

Trust Agreement between [CMH, Inc.,] and [National Bank of 

Commerce Trust and Savings Association] dated September 1, 

1992, pursuant to which the Notes were issued.”

Under the second lease, executed in 2016, CMH, Inc., once 

again leased property to CMHD in exchange for a “contribution,” which was defined as “the amounts, however characterized, as are contributed by [CMHD] to [CMH, Inc.,] from 

time to time and used by [CMH, Inc.,] to acquire some or 

all of the Real Estate and/or the Project.” The “project” was 

defined as “the construction of a replacement hospital facility in Syracuse, Nebraska.” The agreement further provides 

that “[CMHD] agrees to make additional rental payments 

. . . in an amount equal to the aggregate principal amount of 

the Obligations and . . . an amount equal to interest on the 

Obligations.” The term “obligations” was defined as “any evidence of indebtedness incurred by [CMH, Inc.,] for purposes 

of financing or refinancing the Hospital, which is expected 

to consist of (but shall not be limited to) interim construction 

and permanent financing to be provided through one or more 

loans from USDA.” The term “hospital” was defined as “the 

Real Estate, Improvements, and Personal Property currently 

existing on the property or to be constructed in the future by 
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either [CMH, Inc.,] or [CMHD].” The 2016 lease also contains 

a provision granting CMHD an option to purchase the hospital property for $1 provided that no debt obligations remain 

outstanding.

Corroborating the terms of the lease agreements, Harvey 

testified that the rent payments CMHD paid to CMH, Inc., 

were determined by the amount of the loan payments CMH, 

Inc., was making on CMHD’s behalf. Harvey further testified 

that CMHD was responsible for “[a]ll operational expenses 

of the hospital and clinics” and that CMH, Inc., did not have 

any control over the business of “seeing and treating patients 

in exchange for a fee.” In his affidavit, Harvey attested that 

“[a]t all times material to the allegations of the Complaint, 

[CMH, Inc.,] did not employ any healthcare physicians, 

nurses, or staff [and] [n]o healthcare provider-patient relationship existed between [CMH, Inc.,] and patients of [CMHD], 

including [Velma].”

The court reconvened in August 2020, electing to consider 

the evidence and treat CMH, Inc.’s motion as a motion for 

summary judgment. In January 2021, the court entered an 

order granting CMH, Inc.’s motion for summary judgment. 

The court observed that CMHD, and not CMH, Inc., was doing 

business as Community Memorial Hospital when Velma was 

injured. The court found that CMH, Inc., “is not a hospital or 

licensed healthcare facility . . . did not employ any medical 

personnel and did not provide medical care to [Velma].” Thus, 

the court found, CMH, Inc., “cannot be sued for negligence 

or loss of consortium” because CMH, Inc., “owed no duty 

to [Velma].”

The court went on to note that a plaintiff is generally 

allowed to amend a lawsuit to add a new defendant, “unless it 

would be futile,” citing Bailey v. First Nat. Bank of Chadron, 

16 Neb. App. 153, 741 N.W.2d 184 (2007). The court found 

that granting leave to amend the complaint in this case would 

be futile because appellants failed to comply with the requirements of the Political Subdivisions Tort Claims Act (PSTCA), 
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Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012 & Cum. Supp. 

2020). Specifically, appellants failed to serve CMHD with 

written notice of their claims within 1 year of accrual. Rather, 

appellants filed their lawsuit in December 2019, “almost ten 

months after the deadline” to serve CMHD with notice of their 

claims. Accordingly, the court granted CMH, Inc.’s motion for 

summary judgment and dismissed the complaint with prejudice. Appellants now appeal.

ASSIGNMENT OF ERROR

Appellants assign, restated, that the district court erred in 

granting summary judgment.

STANDARD OF REVIEW

[1] An appellate court will affirm a lower court’s grant of 

summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts 

and that the moving party is entitled to judgment as a matter of 

law. Brothers v. Kimball Cty. Hosp., 289 Neb. 879, 857 N.W.2d 

789 (2015).

ANALYSIS

It is undisputed that CMHD is a political subdivision of the 

State of Nebraska, subject to the PSTCA. Appellants do not 

argue that they complied with the requirements of the PSTCA. 

Rather, appellants raise a number of arguments in an effort to 

save the lawsuit despite the apparent defect under the PSTCA.

In their first three arguments, appellants generally assert 

that it was proper to name CMH, Inc., as the sole defendant. 

First, appellants argue CMH, Inc., owed Velma a duty of 

care on the grounds that “[b]oth [CMH, Inc.,] and [CMHD] 

were responsible for management of Community Memorial 

Hospital [and that CMH, Inc.,] was responsible for oversight 

of the hospital and responsible for the hospital activities in 

order to ensure the hospital could pay its bills and continue to 

profit.” Brief for appellants at 16. In support of this argument, 
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appellants correctly point out that “[t]he hospital had a duty to 

furnish [Velma] with a properly functioning hospital bed and 

equipment, and . . . to select and review the competency of 

the employees, agents and staff members providing [Velma’s] 

care.” Id. Appellants continue, “[Velma] received negligent 

treatment in the hospital, and therefore the hospital breached 

its duty of care to [Velma].” Id.

We agree that if Velma suffered from negligent treatment, 

then “the hospital” would have breached its duty of care. 

However, we disagree that naming CMH, Inc., as the sole 

defendant was adequate to prosecute claims of negligence 

against “the hospital.” Rather, the record demonstrates that 

CMH, Inc., is not a medical facility and does not employ any 

medical providers. CMH, Inc., is a private nonprofit corporation created for the express purpose to service privately held 

debts incurred on behalf of CMHD for the construction and 

improvement of its hospitals. We acknowledge that CMH, 

Inc., is the legal owner of property and equipment which 

it leased to CMHD for operation of Community Memorial 

Hospital. However, at the time of Velma’s injury, CMHD 

maintained exclusive possession and control over the hospital 

premises. Furthermore, CMHD was exclusively responsible for 

employing medical providers and managing the provision of 

medical care at the hospital.

[2] Appellants next argue that CMH, Inc., and CMHD 

operated the hospital as a partnership. Under Neb. Rev. Stat. 

§ 67-410(1) (Reissue 2018), a partnership is formed by “the 

association of two or more persons to carry on as co-owners 

a business for profit . . . whether or not the persons intend to 

form a partnership.” The objective indicia of co-ownership are 

commonly considered to be (1) profit sharing, (2) control sharing, (3) loss sharing, (4) contribution, and (5) co-ownership 

of property. In re Dissolution & Winding Up of KeyTronics, 

274 Neb. 936, 744 N.W.2d 425 (2008). The five indicia of 

co-ownership are only that—they are not all necessary to 

establish a partnership relationship, and no single indicium 
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of co-ownership is either necessary or sufficient to prove 

co-ownership. Id.

With regard to profit sharing, appellants point out that 

CMHD “receives the revenue from patient services and hospital business” but that CMHD “transfers the profits to [CMH, 

Inc.,] in order to pay hospital debt and expenses.” Brief 

for appellants at 17. However, the record demonstrates that 

rental payments from CMHD to CMH, Inc., were intended to 

cover solely the expenses incurred by CMH, Inc., in servicing 

CMHD’s debts. CMH, Inc., is a nonprofit corporation without 

any employees and whose directors are prohibited from accepting compensation. CMH, Inc., and CMHD did not carry on as 

co-owners of a business for profit; rather, their relationship was 

more akin to that of creditor and debtor (or landlord and tenant). Under these circumstances, the evidence does not support 

a finding of partnership status.

With regard to control sharing, appellants argue that CMH, 

Inc., and CMHD “share control by way of joint board meetings 

to make the policy and procedural decisions for the hospital, 

and the lease . . . requires [CMHD] to follow the operating and 

employment procedures as may be adopted by [CMH, Inc.]” 

Id. It is true that CMH, Inc., and CMHD held a number of joint 

board meetings beginning in January 2018 and do continue 

to meet on an annual basis. However, Harvey explained that 

“[w]ith [CMH, Inc.,] being the landlord . . . it was just easiest 

for the [CMH, Inc.,] board to get feedback from [CMHD] by 

having joint board meetings about the design and construction 

process.” Harvey further testified that the CMH, Inc., board 

would adjourn after business related to the construction and 

design was finished, leaving only the CMHD board to address 

other matters of hospital business.

It is also true that the 1992 lease agreement includes a provision which reads as follows:

It is expressly understood that [CMHD] shall manage 

and operate the facilities as a hospital and abide by all 

the rules and regulations set forth under the laws of the 
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State of Nebraska and the United States of America, and 

such operating and employment procedures as may be 

adopted by [CMH, Inc.,] from time to time.

However, there is no evidence that such “operating and 

employment procedures” have ever been proposed or adopted 

by CMH, Inc., and there is no similar provision in the updated 

2016 lease. Nevertheless, the record otherwise makes clear that 

CMH, Inc., and its board of directors are subject to control 

and oversight by CMHD and that CMHD exercises exclusive 

control over day-to-day hospital operations and the provision 

of care. Again, under these circumstances, the evidence does 

not support a finding of partnership status between CMH, Inc., 

and CMHD.

With regard to loss sharing, appellants argue that CMH, Inc., 

“holds all hospital debt, and so would be obligated to its lender 

in event of any losses,” such that “[l]osses of revenue would 

decrease the amount of income received by [CMH, Inc.]” Brief 

for appellants at 17. However, the record demonstrates that the 

amount of payments received by CMH, Inc., is linked to the 

outstanding obligations on debt held by CMH, Inc., and not 

to CMHD’s revenue in any given month. Moreover, both the 

1992 and 2016 leases contain robust indemnification provisions under which CMHD agreed to indemnify and save CMH, 

Inc., harmless from and against all losses and liabilities, to the 

extent permitted by law. Under these circumstances, as stated 

above, the evidence does not support the argument that CMH, 

Inc., and CMHD engaged in loss sharing evidencing partnership status.

With regard to contribution, appellants argue that CMH, 

Inc., “contributes the property and physical assets, along with 

decision making by its board of directors and officers; [CMHD] 

contributes its board of directors and officers to help manage 

hospital operations.” Brief for appellants at 17. However, the 

record demonstrates that CMHD’s board of directors does 

much more than “help manage hospital operations.” Rather, 

CMHD is the hospital’s governing body and is exclusively 
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responsible for employing providers and operating hospital 

facilities. Aside from its servicing the debt which facilitated the 

hospital’s construction and subsequent purchases of equipment, 

we are hard pressed to say that CMH, Inc., plays any role in 

hospital operations. Under these circumstances, the evidence 

does not support the argument that CMH, Inc., and CMHD 

engaged in contribution evidencing partnership status.

Finally, with regard to co-ownership of property, appellants emphasize that CMH, Inc., “is the owner of the hospital 

property and is entitled to all the hospital revenue.” Id. First, 

we acknowledge that CMH, Inc., is the sole owner of hospital 

property that serves as collateral for the debt it services on 

CMHD’s behalf. CMHD then leases that property for its exclusive use in operation of the hospital. While it is not entirely 

clear where appellants find support for the latter half of their 

statement, it appears they cite a provision in the 1992 lease 

which provides that “[a]ll reserve, depreciation, debt payment 

and surplus funds shall be transferred to [CMH, Inc.,] on a 

monthly basis in addition to the monthly rental provided for 

herein, which funds shall be maintained by [CMH, Inc.,] for 

the purpose of debt retirement.” Whatever the import of this 

provision when it was written, the record is clear that CMH, 

Inc., receives monthly rental payments in amounts necessary to service the outstanding obligations on CMHD’s debt. 

Neither the landlord-tenant relationship between CMH, Inc., 

and CMHD nor the rental payments related thereto amount to 

joint ownership of property evidencing partnership status.

We conclude the record does not support appellants’ contention that Community Memorial Hospital operated as a partnership between CMH, Inc., and CMHD. While there is certainly 

an “association” between the two entities, we cannot say the 

two entities carry on as co-owners of the hospital business for 

profit. At no point did CMH, Inc., exercise meaningful control over the day-to-day operations at Community Memorial 

Hospital. Rather, CMH, Inc., engaged in the limited business 

of servicing CMHD’s privately held debt. Moreover, CMH, 
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Inc., was at all times subject to substantial oversight from 

CMHD itself. CMH, Inc.’s own bylaws precluded its board of 

directors from taking certain major actions without CMHD’s 

approval, and CMHD was entitled to remove CMH, Inc.’s 

directors with or without cause.

[3,4] We turn then to appellants’ next argument, that CMH, 

Inc., and CMHD operated as a joint venture. A joint venture 

or enterprise is in the nature of a partnership and exists when 

two or more persons contribute cash, labor, or property to a 

common fund with the intention of entering into some business or transaction for the purpose of making a profit to be 

shared in proportion to the respective contributions. Lackman 

v. Rousselle, 257 Neb. 87, 596 N.W.2d 15 (1999). Each of the 

parties in a joint venture or enterprise must have equal voice 

in the manner of its performance and control of the agencies used therein, though one may entrust performance to the 

other. Id.

We conclude the record does not support appellants’ contention that CMH, Inc., and CMHD operated as a joint venture, 

for many of the same reasons we conclude the two entities did 

not operate as a partnership. Additionally, the record is clear 

that CMH, Inc., and CMHD did not jointly enter the hospital 

business for the purpose of making a profit to be shared proportionately. Rather, CMHD entered into the hospital business 

upon the assent of the voting public and the authorization by 

the Otoe County Board of Commissioners and CMH, Inc., 

entered into the “Medical Care Facility Leasing” business upon 

the direction of CMHD. Moreover, it is also clear that CMH, 

Inc., and CMHD do not have “an equal voice” in the performance of hospital business.

Altogether, it is clear from the record that CMHD, doing 

business as Community Memorial Hospital, was the entity 

with which Velma entered into a provider-patient relationship 

and was thus the entity which owed Velma a duty of care. 

Accordingly, we conclude the district court did not err in finding that CMH, Inc., owed no duty to Velma and that CMHD 

was the proper party defendant.
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[5-7] As a political subdivision of the State of Nebraska, 

CMHD was entitled to timely notice of appellants’ claims 

under the PSTCA. Section 13-905 of the PSTCA provides that 

“[a]ll tort claims . . . shall be filed with the clerk, secretary, or 

other official whose duty it is to maintain the official records 

of the political subdivision.” Section 13-919(1) provides that 

“[e]very claim against a political subdivision permitted under 

the [PSTCA] shall be forever barred unless within one year 

after such claim accrued the claim is made in writing to the 

governing body.” Furthermore, “all suits permitted by the act 

shall be forever barred unless begun within two years after 

such claim accrued.” § 13-919(1). While not a jurisdictional 

prerequisite, the filing or presentment of a claim to the appropriate political subdivision is a condition precedent to commencement of a suit under the PSTCA. Keller v. Tavarone, 262 

Neb. 2, 628 N.W.2d 222 (2001). The operation of the NHMLA 

does not excuse compliance with the requirement under the 

PSTCA that a claim be presented to the political subdivision 

prior to filing suit. See Keller v. Tavarone, supra. Accord 

Jacobson v. Shresta, 21 Neb. App. 102, 838 N.W.2d 19 (2013). 

For purposes of § 13-919(1), a cause of action accrues, thereby 

starting the period of limitations, when a potential plaintiff 

discovers, or in the exercise of reasonable diligence should discover, the political subdivision’s negligence. Polinski v. Omaha 

Pub. Power Dist., 251 Neb. 14, 554 N.W.2d 636 (1996).

In this case, appellants’ claims accrued in February 2018, 

when Velma was injured. Thus, appellants were required by 

statute to serve CMHD with their written claims by February 

2019. Only if appellants had satisfied this condition precedent would they have been entitled to file a lawsuit within 

the 2-year statutory limitation. Appellants filed their lawsuit 

in December 2019, which was within the 2-year statutory 

period. However, because appellants failed to comply with the 

notice requirement, their lawsuit was fatally premature and the 

deadline to serve CMHD with their claims had already been 

surpassed by more than 9 months. Thus, we agree with the 
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district court that allowing leave to amend the lawsuit would 

have been futile.

Much was made, both before the district court and now 

on appeal, of the legal relationship between CMH, Inc., and 

CMHD. However, the dispositive flaw in appellants’ lawsuit 

remains that it was not preceded by timely notice to CMHD 

as required by the PSTCA. Appellants raise four arguments 

asserting that their lawsuit was filed in a timely manner.

[8-10] First, appellants argue that CMH, Inc., should be 

equitably estopped from relying on appellants’ failure to give 

timely notice of their claims on the ground that “Community 

Memorial Hospital had actual notice of [appellants’] claims 

because it reported [Velma’s] claim to . . . insurance.” Brief 

for appellants at 18. The doctrine of equitable estoppel rests 

largely on the facts and circumstances of the particular case. 

Gard v. City of Omaha, 18 Neb. App. 504, 786 N.W.2d 688 

(2010). The doctrine of equitable estoppel will not be invoked 

against a governmental entity except under compelling circumstances where right and justice so demand. Id. In such cases, 

the doctrine is to be applied with caution and only for the purpose of preventing manifest injustice. Id. Equitable estoppel is 

an affirmative defense and must be raised in the pleadings to 

be considered by a trial court and on appeal. Id.

[11] In this case, appellants’ pleadings do not allege equitable estoppel. Moreover, at oral argument, counsel for appellants conceded that equitable estoppel was raised for the first 

time on appeal. In general, appellate courts do not consider 

arguments and theories raised for the first time on appeal. In 

re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018).

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. Eletech, Inc. v. Conveyance Consulting 

Group, 308 Neb. 733, 956 N.W.2d 692 (2021). Accordingly, 

we decline to address appellants’ argument regarding equitable estoppel.
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Appellants next argue that “Community Memorial Hospital 

qualified under the [NHMLA]” which served as Velma’s 

“exclusive remedy against the hospital.” Brief for appellants 

at 19. The NHMLA defines the term “health care provider,” 

in pertinent part, as “a hospital.” § 44-2803(4). Thus, we 

agree that Community Memorial Hospital qualified under the 

NHMLA, but the persistent problem in this case is that CMH, 

Inc., is a separate legal entity from CMHD, the latter of which 

is the governing body of the hospital. Accordingly, while the 

hospital itself certainly qualified under the NHMLA, CMH, 

Inc., did not.

[12] Moreover, as discussed above, the Nebraska Supreme 

Court has made clear that operation of the NHMLA does 

not excuse compliance with the notice requirements of the 

PSTCA. Keller v. Tavarone, 262 Neb. 2, 628 N.W.2d 222 

(2001). Appellants acknowledge the cases discussing this rule 

but argue that “these findings should be reversed.” Brief for 

appellants at 19. However, until such time as those cases 

are reversed, we are bound to follow them and appellants’ 

argument under the NHMLA is without merit. See State v. 

LeGrand, 249 Neb. 1, 541 N.W.2d 380 (1995) (Nebraska Court 

of Appeals does not have authority to reverse holdings of the 

Nebraska Supreme Court).

Appellants next argue that the time to file their claim 

should have been extended under § 13-919(2). However, at 

oral argument, counsel for appellants conceded that this argument was also raised for the first time on appeal. Thus, we 

decline to address appellants’ argument under § 13-919(2). See 

In re Estate of Graham, supra (in general, appellate courts do 

not consider arguments and theories raised for first time on 

appeal).

[13-15] Finally, appellants argue their claims were timely 

filed under the “continuing treatment exception” to the occurrence rule found in § 44-2828. Under the occurrence rule, 

a professional malpractice action accrues and the statute of 

limitations begins to run when the allegedly wrongful act or 
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omission occurs. Healy v. Langdon, 245 Neb. 1, 511 N.W.2d 

498 (1994). However, under the continuing treatment exception 

to the occurrence rule, the statute of limitations does not begin 

to run until the act complained of, and any resulting subsequent 

treatment therefor, is completed. See id. The continuous treatment doctrine applies either when there has been a misdiagnosis 

upon which incorrect treatment is given or when there has been 

a continuing course of negligent treatment. Frezell v. Iwersen, 

231 Neb. 365, 436 N.W.2d 194 (1989). It does not apply where 

there have been only isolated acts of negligence. Id.

In this case, appellants argue that Velma underwent treatment for her injuries until spring 2019, such that the statute of 

limitations should not have begun to run until then. However, 

appellants do not allege any negligence aside from that related 

to Velma’s initial fall in February 2018. Thus, the continuing 

treatment exception does not apply to the circumstances of 

this case and appellants’ argument to the contrary is without merit.

Because appellants failed to file timely notice of their 

claims with CMHD, their claims are barred and the district 

court did not err in granting CMH, Inc.’s motion for summary 

judgment.

CONCLUSION

For the foregoing reasons, we conclude the district court did 

not err in granting CMH, Inc.’s motion for summary judgment.

Affirmed.