Elbert v. Young , 312 Neb. 58 ( 2022 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    10/07/2022 09:06 AM CDT
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    ELBERT V. YOUNG
    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 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.
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    ELBERT V. YOUNG
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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 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
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    ELBERT V. YOUNG
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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 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
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    ELBERT V. YOUNG
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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 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
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    ELBERT V. YOUNG
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    312 Neb. 58
    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 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.
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    ELBERT V. YOUNG
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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 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.
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    ELBERT V. YOUNG
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    312 Neb. 58
    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 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).
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    ELBERT V. YOUNG
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    312 Neb. 58
    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 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).
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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 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.
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    A 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
    .
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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 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.
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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 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).
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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 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.
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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” 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).
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    to 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.
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    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.