Maycock v. Hoody

DaviD a. M aycock , as special aDMinistrator of the estate
of M arty a. M aycock , DeceaseD, appellant, v.
steve hooDy, M.D., et al ., appellees.
799 N.W.2d 322
Filed June 24, 2011. 	No. S-09-944.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all favorable
inferences deducible from the evidence.
2. Administrative Law: Statutes: Appeal and Error. To the extent that the mean-
ing and interpretation of statutes and regulations are involved, questions of law
are presented, in connection with which an appellate court has an obligation
to reach an independent conclusion irrespective of the decision made by the
court below.
3. Statutes. Statutes relating to the same subject matter will be construed so as to
maintain a sensible and consistent scheme, giving effect to every provision.
4. Limitations of Actions: Mental Competency: Words and Phrases. A person
with a mental disorder under Neb. Rev. Stat. § 25-213 (Reissue 2008) is one
mAycock v. hoody 	767
cite as 281 Neb. 767
action taken without subject matter jurisdiction is void.18
A void order is a nullity which cannot constitute a judg-
ment or final order that confers appellate jurisdiction on this
court.19 But an appellate court has the power to determine
whether it lacks jurisdiction over an appeal because the lower
court lacked jurisdiction to enter the order; to vacate a void
order; and, if necessary, to remand the cause with appropri-
ate directions.20
Because the juvenile court’s order was void, the department
has not appealed from a final order or judgment. We therefore
vacate the juvenile court’s order and dismiss the appeal for lack
of jurisdiction.
vacateD anD DisMisseD.
Wright, J., not participating.
18 See, Kovar v. Habrock, 261 Neb. 337, 622 N.W.2d 688 (2001); State v.
Bracey, 261 Neb. 14, 621 N.W.2d 106 (2001).
19 See, Macke v. Pierce, 263 Neb. 868, 643 N.W.2d 673 (2002); Bracey,
supra note 18; State v. Rieger, 257 Neb. 826, 600 N.W.2d 831 (1999).
20 See, Bracey, supra note 18; Rieger, supra note 19.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

who suffers from a condition of mental derangement which actually prevents
the sufferer from understanding his or her legal rights or from instituting legal
action. A mental disorder within the meaning of § 25-213 is an incapacity which
disqualifies one from acting for the protection of one’s rights.
5. Appeal and Error. 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.
Petition for further review from the court of Appeals, inboDy,
chief Judge, and sievers and carlson, Judges, on appeal
thereto from the district court for douglas county, W. russell
boWie iii, Judge. Judgment of court of Appeals affirmed.
Terry k. Barber, of Barber & Barber, P.c., L.L.o., for
appellant.
michael F. kinney and kathryn J. cheatle, of cassem,
Tierney, Adams, 	Gotch 	& 	douglas, 	for 	appellee 	Nichole
Liebentritt.
david L. Welch and Ashley E. dieckman, of Pansing, hogan,
Ernst & Bachman, L.L.P., for appellee Alegent health.
michael J. mooney, of Gross & Welch, P.c., L.L.o., for
appellee Steve hoody.
mark E. Novotny and William R. Settles, of Lamson, dugan
& murray, L.L.P., for appellees James Frock et al.
heavican, c.J., gerrarD, stephan, MccorMack , and M iller-
lerMan, JJ.
M iller-lerMan, J.
INTRodUcTIoN
This case involves a complaint alleging medical malpractice
and wrongful death filed under the Nebraska hospital-medical
Liability Act (NhmLA) by the appellant, david A. maycock
(maycock), in his capacity as special administrator of the estate
of marty A. maycock, against various doctors and against
Alegent health, doing business as Bergan mercy medical
center, based on their treatment of marty prior to and until his
death on November 22, 2005. one doctor named in the com-
plaint was not served, and any reference to “doctors” in this
opinion does not pertain to him.
768 	281 NEBRASkA REPoRTS

The district court dismissed the case against certain doctors
based on their unrebutted affidavit evidence showing that they
had met the standard of care. Alegent health was also dis-
missed. These rulings were affirmed by the court of Appeals,
and those doctors and Alegent health are not involved in the
proceeding now before this court.
At the district court, doctors James Frock, Louis Violi,
Sylvia Rael, and James Bowers (the doctors) moved for sum-
mary judgment on the sole basis that the claims against them
were barred by the statute of limitations. The district court
granted the motion and dismissed the claims against the doc-
tors based on the professional negligence 2-year statute of
limitations found at Neb. Rev. Stat. § 25-222 (Reissue 2008).
It is this ruling involving the doctors that is the subject of
this case on appeal. The court of Appeals determined, inter
alia, that there were genuine issues of material fact whether
marty was under a mental disorder as described in Neb. Rev.
Stat. § 25-213 (Reissue 2008) at the time he was treated by
the doctors and that therefore, pursuant to § 25-213, the stat-
ute of limitations was tolled until the removal of his mental
disorder. In a memorandum opinion filed August 3, 2010, the
court of Appeals reversed the summary judgment which had
been entered in favor of the doctors. See Maycock v. Hoody,
No. A-09-944, 2010 WL 3137338 (Neb. App. Aug. 3, 2010)
(selected for posting to court Web site). The doctors petitioned
for further review, which we granted. Because we agree with
the reasoning of the court of Appeals, we affirm.
STATEmENT oF FAcTS
maycock brought this suit on behalf of his son, marty,
against the doctors; against doctors Nicole Liebentritt, Steve
hoody, and Thomas connolly; and against Alegent health,
alleging that they committed medical malpractice in caring for
marty on November 17, 2005, until his death on November 22
and caused marty’s wrongful death. The district court granted
summary judgment in favor of Liebentritt, hoody, and connolly
after it concluded that these defendants had established by their
affidavit evidence that they had met the requisite standard of
care and maycock had failed to rebut their prima facie case.
Alegent health was also dismissed. The court of Appeals
mAycock v. hoody 	769
cite as 281 Neb. 767

affirmed these decisions. maycock petitioned for further review
of these rulings, and we denied his petition.
The district court also dismissed the claims against the
doctors as time barred based on the professional negligence
2-year statute of limitations found at § 25-222. on appeal, the
court of Appeals concluded, inter alia, that the 2-year statute
of limitations under the NhmLA, Neb. Rev. Stat. § 44-2828
(Reissue 2010), controlled and that there were genuine issues
of material fact regarding whether this 2-year period had been
tolled pursuant to § 25-213 for the period during which marty
was suffering from a “mental disorder.” The court of Appeals
reversed the summary judgment in favor of the doctors, and it
is this decision which is before us on further review.
The facts relevant to the issues on further review are recited
below. on November 17, 2005, Frock, a board-certified nephrol-
ogist, saw marty for a consultation at the request of hoody, a
defendant who has been dismissed from this case. In Frock’s
consultation report, he indicates that “[u]pon further question-
ing of [marty] he did admit to drinking almost a whole bottle
of antifreeze after it was noted that the [nasogastric] aspirate
looked like antifreeze.” Frock’s diagnostic impression of marty
was “[s]uspected antifreeze overdose with oliguria [dimin-
ished urine production], acute renal failure, severe increased
anion gap metabolic acidosis and hyperkalemia.” other records
from November 17 indicated that at 12:35 p.m., marty was
“continu[ing] to have no verbal response to questions when
asked and moving arms about in restless manner.” The nurse’s
notes on November 18 at 12:05 a.m. reported that marty was
“able to identify his name” but “[s]till mumble[d] unintelligi-
bly when asked his location or the year.” on November 18 at
8 a.m., the nurse’s notes stated, “[marty] resting quietly in bed,
eyes closed. opens eyes to sound, does not follow commands,
no response to questions of orientation.” on November 18 at
3:05 p.m., marty was intubated by Bowers, and ventilation was
started at 3:19 p.m.
There is evidence in the record that when Liebentritt saw
marty on November 19 and 20, 2005, he “was, at all times
. . . , unconscious [during her observations].” From the time
770 	281 NEBRASkA REPoRTS

Liebentritt saw marty on November 19 until his death, the
basic entry in the nurse’s notes at approximately hourly inter-
vals was “assessment essentially unchanged.” doctors’ notes
state that on November 22, marty was “in septic shock and
comatose with some jerking movements of his head and legs.”
marty died on November 22 at 5:30 p.m.
Given the Thanksgiving holiday, this case, filed on monday,
November 26, 2007, was effectively brought by maycock on
Friday, November 22. In their affidavits in support of their
motions for summary judgment, the doctors stated that the
last dates they provided treatment to marty were as follows:
November 17 for Frock and Violi, November 18 for Rael, and
November 21 for Bowers. Given this evidence, the treatments
provided by the doctors were rendered more than 2 years
prior to the November 22, 2007, date on which the complaint
was effectively filed and the cases against the doctors would
appear to be time barred in the absence of tolling. The court of
Appeals determined that there were questions of fact whether
marty suffered from a mental disorder which permits tolling
under § 25-213, and it reversed the summary judgment entered
in favor of the doctors. The doctors petitioned for further
review of the court of Appeals’ decision, and we granted fur-
ther review.
ASSIGNmENTS oF ERRoR
The doctors claim, summarized and restated, that the court
of Appeals erred when it (1) concluded that maycock’s claim
was subject to the tolling provisions found in § 25-213; (2)
concluded that there were genuine issues as to when marty
was suffering from a mental disorder, where maycock failed
to present expert testimony to prove that marty was suffering
from a mental disorder at any time during his hospitalization;
and (3) did not affirm the summary judgment based on the doc-
tors’ interrogatory answers.
STANdARdS oF REVIEW
[1] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment is granted and gives such party the
mAycock v. hoody 	771
cite as 281 Neb. 767

benefit of all favorable inferences deducible from the evidence.
Schlatz v. Bahensky, 280 Neb. 180, 785 N.W.2d 825 (2010).
[2] To the extent that the meaning and interpretation of
statutes and regulations are involved, questions of law are
presented, in connection with which an appellate court has
an obligation to reach an independent conclusion irrespective
of the decision made by the court below. Davio v. Nebraska
Dept. of Health & Human Servs., 280 Neb. 263, 786 N.W.2d
655 (2010).
ANALySIS
Maycock’s Claim Is Subject to the 2-Year Statute of
Limitations in the NHMLA, § 44-2828, and the
Tolling Provisions of § 25-213 Apply.
The district court concluded that the 2-year professional
negligence statute of limitations in § 25-222 controlled this
case. The district court determined that the case had been filed
after the 2-year period and that the case was therefore time
barred. The district court granted summary judgment in favor
of the doctors and dismissed the case on this basis.
contrary to the rulings of the district court, the court of
Appeals concluded that the 2-year statute of limitations in the
NhmLA, § 44-2828, controlled this action and that § 25-213,
which tolls the statute of limitations for a person with a “men-
tal disorder,” applied to this action. The court of Appeals
determined that there were issues of fact as to the duration
during which marty suffered from a mental disorder and his
action against the doctors was tolled. The court of Appeals
reversed the summary judgment and remanded the cause for
further factual development on matters to which § 25-213 toll-
ing would apply.
The doctors claim on further review that the court of
Appeals erred as a matter of law when it concluded that
§ 25-213 tolling applied to this case. The doctors assert that the
tolling provisions of § 25-213 do not apply to a case brought
by the representative of an individual suffering from a mental
disorder, as distinguished from a case brought by the individual
himself or herself. We reject this argument.
As initial matters, we note that this action is brought under
and governed by the NhmLA, Neb. Rev. Stat. §§ 44-2801
772 	281 NEBRASkA REPoRTS

through 44-2855 (Reissue 2010), and further note that § 25-213
tolling was raised in various forms before the district court,
including in an affidavit filed in response to the doctors’ motion
for summary judgment. We therefore consider the NhmLA and
§ 25-213 as we resolve this assignment of error.
In Alegent Health Bergan Mercy Med. Ctr. v. Haworth, 260
Neb. 63, 615 N.W.2d 460 (2000), we concluded in an NhmLA
case involving the death of a patient that the 2-year statute of
limitations in § 44-2828 controlled the statute of limitations
rather than the wrongful death statute of limitations in Neb.
Rev. Stat. § 30-810 (Reissue 2008). Thus, the 2-year provi-
sion of § 44-2828 applies to the wrongful death allegations in
the instant suit. We apply the same reasoning as articulated in
Alegent Health Bergan Mercy Med. Ctr. and conclude that the
NhmLA’s 2-year limitations period covering “malpractice or
professional negligence,” set forth in § 44-2828, is the specific
statute of limitations applicable to the malpractice allegations
in this action, rather than the professional negligence statute
of limitations in § 25-222. Section 44-2828 provides generally
for a 2-year statute of limitations “[e]xcept as provided in sec-
tion 25-213.”
Section 25-213 provides for tolling of the statute of limita-
tions in relevant part as follows:
[I]f a person entitled to bring any action mentioned in
chapter 25, the Political Subdivisions Tort claims Act,
the [NhmLA], the State contract claims Act, the State
Tort claims Act, or the State miscellaneous claims Act,
except for a penalty or forfeiture, for the recovery of
the title or possession of lands, tenements, or heredita-
ments, or for the foreclosure of mortgages thereon, is, at
the time the cause of action accrued, within the age of
twenty years, a person with a mental disorder, or impris-
oned, every such person shall be entitled to bring such
action within the respective times . . . after such disability
is removed.
The tolling in § 25-213, by its terms, may be invoked
by “a person entitled to bring any action mentioned in . . .
the [NhmLA].”
Section 44-2822 identifies who is entitled to file an action
under the NhmLA. Section 44-2822 of the NhmLA provides:
mAycock v. hoody 	773
cite as 281 Neb. 767

Subject to the requirements of sections 44-2840 to
44-2846, a patient or his or her representative having a
claim under the [NhmLA] for bodily injury or death on
account of alleged malpractice, professional negligence,
failure to provide care, breach of contract, or other claim
based upon failure to obtain informed consent for an
operation or treatment may file a petition or complaint in
any court of law having requisite jurisdiction. No dollar
amount or figure shall be included in the demand in any
malpractice petition or complaint, but the petition shall
ask for such damages as are reasonable in the premises.
Under § 44-2822, a “representative” of a patient with a
claim under the NhmLA can file an action “in any court of law
having requisite jurisdiction.” A “representative” for NhmLA
purposes is defined in § 44-2808 as follows: “Representative
shall mean the spouse, parent, guardian, adult child, execu-
tor, administrator, trustee, attorney, or other legal agent of the
patient.” (Emphasis supplied.)
[3] Section 44-2828 of the NhmLA refers to § 25-213, and
§ 25-213 refers to the NhmLA. Both statutes relate to the
time during which an action should be filed. Statutes relating
to the same subject matter will be construed so as to maintain
a sensible and consistent scheme, giving effect to every provi-
sion. In re Interest of Gabriela H., 280 Neb. 284, 785 N.W.2d
843 (2010). Reading the foregoing statutes together, it is clear
that a “representative” is entitled to bring an action under the
NhmLA within 2 years, which action, pursuant to § 44-2828,
is subject to tolling under § 25-213. As special “administrator”
of marty’s estate, maycock is a “representative” as described
in § 44-2808 of the NhmLA and entitled to bring an action
which is subject to the tolling provisions of § 25-213. our
reading of these related statutes gives them a sensible and con-
sistent construction.
It has been observed that generally, “[w]hile the statute
of limitations is suspended for as long as plaintiff’s mental
incompetency exists, it begins to run against the cause of action
when the disabled person dies.” 51 Am. Jur. 2d Limitations of
Actions § 234 at 601 (2000). our reading of the statutes which
774 	281 NEBRASkA REPoRTS

were quoted above is consistent with the foregoing observation
and the proposition that the representative of the deceased steps
into the shoes of the deceased and assumes whatever rights he
or she had, including the ability to assert tolling that occurred
during the life of the deceased and prior to the representative’s
appointment. See, e.g., Schwartz v. Wasserburger, 117 Nev.
703, 30 P.3d 1114 (2001) (observing in contract action that per-
sonal representative inherits the benefits and burdens connected
with running of any applicable statute of limitations applicable
to decedent).
Notwithstanding the foregoing statutory authority permitting
the filing of the NhmLA action by a representative subject
to § 25-213 tolling, the doctors assert that under case law, a
representative of a patient cannot take advantage of the mental
disorder tolling in § 25-213. In this regard, the doctors rely pri-
marily on Sherwood v. Merchants Mut. Bonding Co., 193 Neb.
262, 226 N.W.2d 761 (1975). The doctors misread Sherwood,
and we reject this argument.
Sherwood was an action to recover on the bond of a guard-
ian under Neb. Rev. Stat. § 25-210 (Reissue 2008). The plain-
tiff in Sherwood contended that the provisions in § 25-210
which granted an out-of-state or legally disabled plaintiff an
additional 5 years after discharge of the guardian to bring
suit extended to executors or administrators. We rejected this
argument, stating that § 25-210 “does not toll the statutes of
limitations for the benefit of executors or administrators.”
Sherwood v. Merchants Mut. Bonding Co., 193 Neb. at 264,
226 N.W.2d at 762. our statement that certain tolling provi-
sions did not apply to executors or administrators referred to
the scope of extensions of time available in an action under
§ 25-210 and not to tolling under § 25-213, the latter of which
was mentioned only incidentally in Sherwood as a source
for a definition of “legal disability” as that term is used in
§ 25-210.
The court of Appeals did not err when it concluded that
§ 25-213 tolling applied to this action brought by a representa-
tive subject to and governed by the 2-year statute of limitations
in § 44-2828 of the NhmLA.
mAycock v. hoody 	775
cite as 281 Neb. 767

The Court of Appeals Did Not Err When It Found
Genuine Issues of Material Fact With Respect to
the Duration of Marty’s Mental Disorder.
The court of Appeals reviewed and quoted extensively from
the medical records in evidence. The salient facts are recited
earlier in this opinion. The court of Appeals determined that
marty “undisputedly was suffering from a mental disorder,
i.e., incapacitated,” on November 22, 2005, but that there
were genuine issues of material fact, warranting reversal and
remand, regarding whether marty suffered from a mental dis-
order before November 22. Maycock v. Hoody, No. A-09-944,
2010 WL 3137338 (Neb. App. Aug. 3, 2010) (selected for
posting to court Web site). This suit was effectively filed on
November 22, 2007. determination of the dates on which
marty suffered a “mental disorder” as that term is used in
§ 25-213 will determine the days on which the statute of limi-
tations will be tolled and whether claims should be dismissed
as time barred against certain doctors. The doctors claim that
the court of Appeals erred when it determined that marty suf-
fered a mental disorder, in the absence of expert opinion to that
effect. We reject this argument.
[4] The court of Appeals has repeatedly considered the
meaning of “mental disorder” under § 25-213. In Vergera v.
Lopez-Vasquez, 1 Neb. App. 1141, 1147, 510 N.W.2d 550, 554
(1993), the court of Appeals held that a person with a mental
disorder under § 25-213 is “one who suffers from a condition
of mental derangement which actually prevents the sufferer
from understanding his or her legal rights or from instituting
legal action” and that a mental disorder within the meaning of
§ 25-213 is “an incapacity which disqualifies one from acting
for the protection of one’s rights.” See, also, Anonymous v.
St. John Lutheran Church, 14 Neb. App. 42, 703 N.W.2d 918
(2005). This definition is comparable to that expressed in our
opinion in Sacchi v. Blodig, 215 Neb. 817, 822, 341 N.W.2d
326, 330 (1983), decided under an earlier version of § 25-213,
in which we observed in a medical malpractice case that “the
purpose of § 25-213 is to lift the burden of severe time restric-
tions or limitations from those under legal disability, that is,
776 	281 NEBRASkA REPoRTS

from those who do not have the ability and capacity to protect
their rights existing under our laws.”
The court of Appeals properly invoked and applied the
definition of “mental disorder” under § 25-213 announced
in Vergera v. Lopez-Vasquez, supra. See Maycock v. Hoody,
supra. Referring to an EEG study of brain activity, the court of
Appeals quoted from the doctor’s notes dictated on November
22, 2005, as follows: “‘[marty] is currently in septic shock and
comatose with some jerking movements of his head and legs.’”
Id. at *10. The court of Appeals stated that “[c]omatose is a
commonly understood condition of both mental and [physical]
‘“incapacity which disqualifies one from acting for the protec-
tion of one’s rights”’” and that thus, marty had a mental disor-
der under § 25-213 on November 22 if not earlier. Id. In further
support of its determination that marty suffered a “mental
disorder” on November 22, the court of Appeals quoted from
“‘Physician orders/Progress Notes’” of November 22 which
stated, “Neurological consensus is that [marty] has irreversible
brain damage.” Id. at *11.
The doctors assert that the court of Appeals erred when it
found that marty suffered from a mental disorder on November
22, 2005, without maycock’s supplying an expert opinion to
that effect. The doctors rely on Anonymous v. St. John Lutheran
Church, supra, in support of their argument that an expert
opinion was required. In Anonymous, the court of Appeals
indicated that an expert opinion was necessary because the
mental disorder claimed by the plaintiff for which tolling was
invoked involved “‘a variety of medical and physical ailments
including post-traumatic stress disorder,’” 14 Neb. App. at 52,
703 N.W.2d at 927, and such ailments could not readily be
equated with an inability to institute legal action. We believe
the facts in Anonymous are distinguishable from those in the
instant case.
Whereas the disorder claimed in Anonymous was vague with
respect to its impact on the plaintiff’s ability to institute legal
action, the facts in the instant case, at least on November 22,
2005, are obvious and lead readily to the court of Appeals’
determination that marty was comatose and suffered from a
mAycock v. hoody 	777
cite as 281 Neb. 767

mental disorder as understood under § 25-213 on November
22 if not sooner. We have stated that “‘expert testimony is not
legally necessary when the conclusion to be drawn from the
facts does not require specific, technical, or scientific knowl-
edge and the circumstances surrounding the injury are within
the common experience, knowledge, and observation of lay-
men.’” Reifschneider v. Nebraska Methodist Hosp., 222 Neb.
782, 785, 387 N.W.2d 486, 488 (1986).
It is common knowledge that an individual who is coma-
tose is unable on that occasion to institute legal action, and an
expert opinion is not required to so determine where evidence
supports this determination.
our resolution of this issue is consistent with authorities
elsewhere. In deciding a case applying Texas law, the court
in In re Mirapex Products Liability Litigation, 735 F. Supp.
2d 1113, 1122 (d. minn. 2010), stated: “To survive summary
judgment, plaintiff must come forward with either (1) evidence
permitting the court to conclude he lacked the mental capacity
to pursue litigation, or (2) a fact-based expert opinion to the
same effect.” The record in this case shows that maycock pre-
sented evidence contained in hospital records which permitted
a court to determine without expert opinion that marty suffered
a mental disorder under § 25-213 on November 22, 2005, if not
earlier, and, therefore, his representative can take advantage of
tolling under § 25-213 in this suit brought under the NhmLA.
Because there is evidence to support the determination of the
court of Appeals, an expert opinion was not required under
the facts of this case. We conclude that the court of Appeals
did not err when it ordered reversal and remand based on its
determination that there were genuine issues of material fact
regarding whether marty was under a mental disorder prior to
November 22, as such condition related to the statute of limita-
tions issue.
The Court of Appeals Did Not Err When It Did Not
Affirm the Summary Judgment Based on the
Doctors’ Interrogatory Answers.
The doctors assert that the record would support a grant of,
and the affirmance of a grant of, summary judgment in their
778 	281 NEBRASkA REPoRTS

favor by the district court based on their interrogatory answers
which indicated that they had met the standard of care. They
claim that the court of Appeals erred when it did not consider
their interrogatory answers and thus failed to affirm the sum-
mary judgment on the basis of those answers. We find no error
by the court of Appeals in this regard.
The district court granted summary judgment to the doctors
based on their claim that maycock’s action was time barred.
The doctors submitted affidavits regarding treatment dates
in support of this argument. Unlike Liebentritt, hoody, and
connolly, the doctors did not submit affidavits asserting that
they had met the standard of care and did not urge the district
court to rule in their favor on that basis.
maycock appealed to the court of Appeals. The doctors did
not cross-appeal and claim before the court of Appeals that
an alternative basis for affirming summary judgment in their
favor might be found within each doctor’s 27 pages of answers
to interrogatories.
No assignment of error before the court of Appeals sought
consideration of the doctors’ assertion made to this court that
summary judgment in their favor could be affirmed on the basis
that they had made a prima facie case in their interrogatory
answers that they met the standard of care and were entitled to
judgment on a basis unrefuted by maycock. For completeness,
we note that in a motion for rehearing, the doctors claimed that
the court of Appeals committed plain error by not granting the
doctors relief on the basis of the standard of care issue. The
motion for rehearing was denied by the court of Appeals.
[5] 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 sub-
mitted to it for disposition. State v. Ford, 279 Neb. 453, 778
N.W.2d 473 (2010). We find no error by the court of Appeals
when it rejected the motion for rehearing or when it did not
consider sua sponte the standard of care issue.
coNcLUSIoN
on further review, we conclude that the court of Appeals
correctly concluded that the 2-year statute of limitations in
mAycock v. hoody 	779
cite as 281 Neb. 767

§ 44-2828 of the NhmLA was applicable to this case and
subject to tolling under § 25-213 for a mental disorder and that
there were genuine issues of material fact regarding whether
and on what dates the action was tolled. The court of Appeals
correctly reversed the summary judgment entered in favor of
the doctors and remanded the cause for further proceedings.
affirMeD.
Wright and connolly, JJ., not participating.
april palMer , appellant, v. lakesiDe Wellness center ,
Doing business as alegent health , anD
precor , inc., appellees.
798 N.W.2d 845
Filed June 24, 2011. 	No. S-10-974.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s granting 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 those facts and that the moving party is
entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, the 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.
3. Contracts: Parties: Intent. In order for those not named as parties to recover
under a contract as third-party beneficiaries, it must appear by express stipulation
or by reasonable intendment that the rights and interest of such unnamed parties
were contemplated and that provision was being made for them.
4. Contracts: Parties. The right of a third party benefited by a contract to sue must
affirmatively appear from the language of the instrument when properly inter-
preted or construed.
5. Negligence: Words and Phrases. Gross negligence is great or excessive neg-
ligence, which indicates the absence of even slight care in the performance of
a duty.
6. Negligence. Whether gross negligence exists must be ascertained from the facts
and circumstances of each particular case and not from any fixed definition
or rule.
7. Negligence: Summary Judgment. The issue of gross negligence is susceptible to
resolution in a motion for summary judgment.
Appeal from the district court for douglas county: Joseph
s. troia, Judge. Affirmed.
780 	281 NEBRASkA REPoRTS