Saylor v. State

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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
SAYLOR v. STATE
Cite as 315 Neb. 285
James Saylor, appellant, v. State
of Nebraska et al., appellees.
___ N.W.2d ___
Filed September 22, 2023. 	No. S-22-822.
1. Judgments: Pleadings. A motion for judgment on the pleadings is prop-
erly granted when it appears from the pleadings that only questions of
law are presented.
2. Claim Preclusion. The applicability of claim preclusion is a question
of law.
3. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
4. Trial: Pleadings: Pretrial Procedure. A motion for judgment on the
pleadings admits the truth of all well-pleaded facts in the oppos-
ing party’s pleadings, together with all reasonable inferences to be
drawn therefrom, and the moving party admits, for the purpose of the
motion, the untruth of the movant’s allegations insofar as they have
been controverted.
5. ____: ____: ____. On a motion for judgment on the pleadings, the
court may consider all the pleadings and give judgment for the party
entitled thereto.
6. Judgments: Claim Preclusion. Claim preclusion bars the relitigation
of a claim that has been directly addressed or necessarily included in
a former adjudication if (1) the former judgment was rendered by a
court of competent jurisdiction, (2) the former judgment was a final
judgment, (3) the former judgment was on the merits, and (4) the same
parties or their privies were involved in both actions. The doctrine bars
relitigation not only of those matters actually litigated, but also of those
matters which might have been litigated in the prior action.
7. Claim Preclusion. The doctrine of claim preclusion rests on the neces-
sity to terminate litigation and on the belief that a person should not be
vexed twice for the same cause.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:50 AM CDT

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SAYLOR v. STATE
Cite as 315 Neb. 285
8. Claim Preclusion: Actions. Whether a subsequent suit alleges the same
cause of action as a prior suit is determined by whether the right to be
vindicated rests upon the same operative facts; if so, the same cause
of action has been alleged, even if different theories of recovery are
relied upon.
9. Claim Preclusion. Claim preclusion is an affirmative defense which
must ordinarily be pleaded to be available.
10. Limitations of Actions: Negligence: Torts. In a negligence action,
a statute of limitations begins to run as soon as the cause of action
accrues, and an action in tort generally accrues as soon as the act or
omission occurs. This principle has been referred to as “the occur-
rence rule.”
11. Actions. A party may not split a cause of action. If the party might have
had complete relief in an action that was prosecuted to final judgment,
the party may not again vex his or her former adversary with another
suit based upon the same wrong.
12. Judgments: Estoppel: Proof. A party may not present issues for
determination and avoid the effect of an estoppel by withholding
proof thereof.
13. Claim Preclusion: Judgments. Except in special cases, the plea of
res judicata, also referred to as “claim preclusion,” applies not only to
points upon which the court was actually required by the parties to form
an opinion, but to every point which properly belonged to the subject of
litigation and which the parties exercising reasonable diligence might
have brought forward at the time.
14. Actions: Tort Claims Act: Time. Generally speaking, a claimant can-
not file suit under the State Tort Claims Act until the Risk Manager or
State Claims Board makes a final disposition of the claim, but if no final
disposition of a claim has been made after 6 months, the claimant is
permitted to withdraw the claim and file suit.
15. Appeal and Error. A case is not authority for any point not necessary
to be passed on to decide the case or not specifically raised as an issue
addressed by the court.
16. ____. An alleged error must be both specifically assigned and specifi-
cally argued in the brief of the party asserting the error to be considered
by an appellate court.
17. ____. 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.

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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
SAYLOR v. STATE
Cite as 315 Neb. 285
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Joshua D. Barber, of Barber & Barber, P.C., L.L.O., for
appellant.
Michael T. Hilgers, Attorney General, Eric J. Hamilton,
Solicitor General, and Christian Edmonds for appellees.
Miller-Lerman, Cassel, Stacy, and Funke, JJ.
Cassel, J.
INTRODUCTION
James Saylor, an inmate at the Nebraska Department of
Correctional Services, appeals from an order dismissing his
lawsuit under the State Tort Claims Act (STCA), 1 based on
a finding that Saylor’s action was barred by the doctrine of
claim preclusion. This appeal implicates two actions filed by
Saylor under the STCA, which this court previously heard
separately in Saylor v. State (Saylor I) 2 and Saylor v. State
(Saylor II). 3 We conclude that Saylor could have, and should
have, brought all of his claims in the first action, but failed to
do so. Therefore, claim preclusion applies. We affirm.
BACKGROUND
Saylor filed two cases against the State, district court cases
Nos. CI 17-1986 (the “first action,” addressed by this court in
Saylor I) and CI 17-2205 (the “second action,” addressed in
Saylor II). We recite the procedural histories of these cases as
relevant to the instant appeal. A more detailed background is
provided by our opinions in the prior appeals. 4
1 See Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014 & Cum. Supp.
2022).
2 Saylor v. State, 304 Neb. 779, 936 N.W.2d 924 (2020).
3 Saylor v. State, 306 Neb. 147, 944 N.W.2d 726 (2020).
4 See, Saylor I, supra note 2; Saylor II, supra note 3.

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SAYLOR v. STATE
Cite as 315 Neb. 285
Initial Proceedings
On May 30, 2017, Saylor filed the first action, alleging, in
relevant part, a negligence claim against the State.
Seventeen days later, on June 16, 2017, Saylor filed the sec-
ond action. The initial complaint in the second action indicated
that it was premised on “[Saylor’s] multiple claims for dam-
ages according to statute, including, but not necessarily limited
to,” a tort claim Saylor filed with the State Claims Board in
June 2016.
Several months later, on November 21, 2017, Saylor served
the State in the first action, and the State removed that case—
which asserted both state and federal claims—to federal court.
While the first action was pending in federal court, Saylor
filed an amended complaint in the second action, alleging 16
causes of action under the STCA. Each cause of action was
apparently premised on a separate tort claim filed with the
State Claims Board in either June 2016 or February 2017.
The amended complaint alleged that each tort claim was ripe
for suit, either because the State Claims Board did not enter
a final disposition within 6 months of the tort claim’s filing
or because the board entered a final disposition of the tort
claim on June 15, 2017—the day before Saylor filed the sec-
ond action.
The State filed a motion to dismiss the second action, alleg-
ing that the tort claims failed to comply with the claim pre-
sentment provisions of the STCA. 5 The hearing on the State’s
motion to dismiss was stayed pending the anticipated remand
of the first action to the district court from federal court.
After the federal court remanded the first action to the dis-
trict court, Saylor filed an amended complaint in that action,
and the State filed a motion to dismiss it.
The State also filed a motion to consolidate the two
actions. In support, the State alleged, in part, that the primary
5 See § 81-8,212 (“[a]ll tort claims shall be filed with the Risk Manager in
the manner prescribed by the State Claims Board”).

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claims in the second action “overlap substantially” the first
action and that the parties and the court would benefit from
streamlined proceedings.
The district court treated the motion as limited consolidation
for progression and trial, sustained that motion, and set a hear-
ing on the State’s motions to dismiss. The court noted:
Both [the first action] and [the second action] involve
Saylor as [plaintiff] and the State as [defendant]. They
are companion cases. The motion to consolidate the
cases for progression and trial is sustained. . . . Both
cases will remain open and pleadings and filings, as
needed, will be made in the respective cases.
The court held a hearing on the motions to dismiss in
both 	actions 	and 	received 	evidence. 	The 	parties 	agreed
that the motions would be considered as motions for sum-
mary judgment.
Judgments on Converted Motions
for Summary Judgment
The district court sustained both motions and entered two
judgments, styled as orders, which appear on separate dockets.
One judgment dismissed the first action with prejudice, find-
ing that it was barred by the limitations period set forth in the
STCA. 6 The other judgment dismissed the second action with
prejudice, finding that Saylor had failed to comply with the
presuit claim presentment provisions of the STCA. 7 Saylor
timely appealed from both judgments.
Direct Appeals
In separate opinions, this court considered the district court’s
judgments dismissing Saylor’s two actions. In Saylor I, we
agreed with the district court that the first action was time
6 See § 81-8,227(1) (6-month limitations period for filing suit following
final disposition or withdrawal of tort claim).
7 See § 81-8,212.

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SAYLOR v. STATE
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barred by the limitations period in the STCA and affirmed
dismissal. We specifically stated: “The 2017 complaint appears
to allege the same claims of negligent medical care that Saylor
presented to the State Claims Board [in the claim filed on
September 14, 2012], and no one contends otherwise.” 8 It was
undisputed that Saylor had failed to file suit within 6 months of
the denial of the 2012 tort claim on October 19, 2012.
In Saylor II, we held that Saylor’s tort claims in the sec-
ond action substantially complied with the claim presentment
provisions of the STCA and thus were not barred on that
ground. Accordingly, we reversed the district court’s judg-
ment and remanded the instant cause to that court for further
proceedings.
Proceedings After Remand
Following this court’s remand of the second action to the
district court, Saylor filed the operative amended complaint
that is the subject of the instant appeal. This complaint alleged
a single cause of action premised on the 16 tort claims that
Saylor filed with the State Claims Board in June 2016 and
February 2017. The operative amended complaint attached
and incorporated these tort claims by reference. They alleged
various harms occurring on specific dates between June 2014
and February 2017, many of which were asserted to be “con-
tinuous” harms that involved either inadequate medical care or
Saylor’s conditions of confinement.
The State filed an answer asserting, in part, that “[s]ome, or
all of [Saylor’s] claims may be barred by the doctrine of res
judicata.” The State also moved for judgment on the plead-
ings, seeking dismissal of the operative amended complaint,
with prejudice, for failure to state a claim upon which relief
could be granted. The sole basis for the State’s motion was
claim preclusion.
8 Saylor I, supra note 2, 304 Neb. at 783, 936 N.W.2d at 927.

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SAYLOR v. STATE
Cite as 315 Neb. 285
District Court Dismissal
Following a hearing, the district court entered a judgment,
styled as an order, sustaining the State’s motion for judgment
on the pleadings and dismissing the second action with preju-
dice. Addressing Saylor’s arguments below, the court reasoned
that both actions “alleged the same cause of action based on
the same operative facts” and that the first action resulted in a
final judgment on the merits.
The court examined the pleadings in the two actions. It
noted that the amended complaint in the first action alleged,
in part:
The negligence, carelessness and recklessness of [the
State] consisted of the following, among other things:
A. In failing to provide [Saylor] with proper medical
supplies for his cell;
B. In failing to provide [Saylor] with proper medication;
C. 	In 	failing 	to 	provide 	[Saylor] 	with 	proper
psychotherapy;
D. In failing to provide [Saylor] with proper and neces-
sary housing conditions;
E. In placing [Saylor] in an environment which exacer-
bates and worsens his medical condition;
F. In failing to provide continuity of care;
G. In failing to properly administer medications as pre-
scribed by a physician;
H. In failing to render health care in accordance with
good and accepted medical and professional practice; and,
I. In being otherwise careless, negligent and reckless
under the circumstances.
The court stated: “Saylor pleaded that [the State’s] alleged
breaches were ongoing from approximately 2010 through pres-
ent . . . . No specific administrative tort claim was referenced,
cited, incorporated, or attached to either his complaint or
amended complaint.”
Turning to the operative amended complaint in the second
action, the court noted that it alleged, in part:

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SAYLOR v. STATE
Cite as 315 Neb. 285
[T]he [State] ha[s] negligently engaged in a course of
conduct, breaching the above duties of care owed to
[Saylor] in the following particulars including but not
limited to:
a. Not providing the psychotherapy, mental health
care and/or psychiatric care needed to adequately treat
[Saylor’s] 	PTSD 	that 	meets 	the 	community 	standard
of care;
b. Not providing the psychotropic medication needed
to adequately treat [Saylor’s] PTSD that meets the com-
munity standard of care;
c. Not providing the continuity of care needed to ade-
quately address [Saylor’s] PTSD diagnosis and symptoms
that meets the community standard of care;
d. Not providing the over counter medication needed to
treat [Saylor’s] migraine headaches that meets the com-
munity standard of care;
e. Continuing to violate its rules and regulations by
placing [Saylor] in restrictive housing;
f. Continuing to house [Saylor] in restrictive housing
against mental health staff recommendation and contrary
to the community standard of care;
g. Continuing to house [Saylor] in restrictive housing,
subjecting [Saylor] to restraints and hard services despite
physical injuries associated with the 2002 assault;
h. Depriving [Saylor] of medically necessary migraine
headache medicine contrary to the community standard
of care;
i. Depriving [Saylor] of medically necessary medi-
cal equipment contrary to the community standard of
care and;
j. Failing to provide a continuity of care.
The court observed that the operative amended complaint
“affirmatively references, attaches, and incorporates” the 16
tort claims filed by Saylor in June 2016 and February 2017.
The court stated that the pleaded harms “appear to go beyond

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SAYLOR v. STATE
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the confines of these administrative tort claims” and that some
of the alleged breaches had been “ongoing since on or before
September 2010.”
Based on its review of the pleadings, the court concluded
that the harms alleged in the second action were “necessar-
ily included” in the first action. The court explained that both
cases alleged a claim of negligence against the State for failure
to provide Saylor with the community standard of care, that the
purported breaches were “nearly identical” in both cases, and
that both cases alleged and sought recovery for “ongoing harms
since 2010.”
The court rejected Saylor’s argument that the two actions
presented different causes of action because one was pre-
mised on a tort claim filed with the State Claims Board in
2012 and the other was premised on tort claims filed with the
board in 2016 and 2017. The court stated that the claim pre-
clusion inquiry “does not look to the pre-suit administrative
tort claims” or “confine itself to the litigated issue.” It then
explained that the first action was not limited to the issues
raised in the 2012 tort claim and that “[c]onsequently, the
preclusive effect of the judgment in Saylor I extends beyond
the confines of the 2012 administrative tort claim to include
all similar harms from 2010 through May 2017, as pleaded
by Saylor.”
The court also rejected Saylor’s argument that the claim
presentment rules in the STCA “forced him to file separate
lawsuits” because, he contended, his cause of action “did not
accrue” until his tort claims were decided by the State Claims
Board or withdrawn. The court explained that the STCA
“does not change when a cause of action accrues.” It further
explained that Saylor could have amended his complaint in
the first action to add the 2016 and 2017 tort claims or sought
a stay pending the final disposition of his tort claims, but that
he failed to do so. The court concluded that the entirety of the
second action could have been brought in the first action and
thus “f[ell] within its preclusive effect.”

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SAYLOR v. STATE
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Saylor filed a timely appeal, which we moved to our docket. 9
ASSIGNMENT OF ERROR
Saylor assigns that the district court erred in “sustaining
the State’s motion for judgment on the pleadings” and “deter-
mining that [his] action was barred by the doctrine of claim
preclusion.”
STANDARD OF REVIEW
[1-3] A motion for judgment on the pleadings is properly
granted when it appears from the pleadings that only questions
of law are presented. 10 The applicability of claim preclusion is
a question of law. 11 An appellate court independently reviews
questions of law decided by a lower court. 12
ANALYSIS
[4,5] Saylor contends that the district court erred in sustain-
ing the State’s motion for judgment on the pleadings, because,
he asserts, claim preclusion does not apply. A motion for
judgment on the pleadings admits the truth of all well-pleaded
facts in the opposing party’s pleadings, together with all rea-
sonable inferences to be drawn therefrom, and the moving
party admits, for the purpose of the motion, the untruth of the
movant’s allegations insofar as they have been controverted. 13
On a motion for judgment on the pleadings, the court may
consider all the pleadings and give judgment for the party
entitled thereto. 14
9 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
10 Korth v. Luther, 304 Neb. 450, 935 N.W.2d 220 (2019).
11 See Schaeffer v. Frakes, 313 Neb. 337, 984 N.W.2d 290 (2023).
12 Hernandez v. Dorantes, 314 Neb. 905, 994 N.W.2d 46 (2023).
13 Denali Real Estate v. Denali Custom Builders, 302 Neb. 984, 926 N.W.2d
610 (2019).
14 Hutmacher v. City of Mead, 230 Neb. 78, 430 N.W.2d 276 (1988).

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SAYLOR v. STATE
Cite as 315 Neb. 285
We read Saylor’s briefing to present two primary arguments.
Before addressing his arguments, we set forth the general prin-
ciples governing claim preclusion.
Claim Preclusion
[6] Claim preclusion bars the relitigation of a claim that has
been directly addressed or necessarily included in a former
adjudication if (1) the former judgment was rendered by a
court of competent jurisdiction, (2) the former judgment was
a final judgment, (3) the former judgment was on the merits,
and (4) the same parties or their privies were involved in both
actions. The doctrine bars relitigation not only of those matters
actually litigated, but also of those matters which might have
been litigated in the prior action. 15
[7-9] The doctrine of claim preclusion rests on the necessity
to terminate litigation and on the belief that a person should
not be vexed twice for the same cause. 16 Whether the subse-
quent suit alleges the same cause of action as the prior suit is
determined by whether the right to be vindicated rests upon the
same operative facts; if so, the same cause of action has been
alleged, even if different theories of recovery are relied upon. 17
Claim preclusion is an affirmative defense which must ordinar-
ily be pleaded to be available. 18
As a preliminary matter, we note that the State alleged claim
preclusion as an affirmative defense in its answer to the opera-
tive amended complaint and again raised this defense as the
basis of its motion for judgment on the pleadings. The issue is
properly before this court on appeal. We next turn to Saylor’s
specific arguments.
15 Bohling v. Tecumseh Poultry, 314 Neb. 129, 988 N.W.2d 529 (2023).
16 Id.
17 Schaeffer v. Frakes, supra note 11; Farmers State Bank v. Germer, 231
Neb. 572, 437 N.W.2d 463 (1989).
18 Boone River, LLC v. Miles, 314 Neb. 889, 994 N.W.2d 35 (2023). See,
Neb. Ct. R. Pldg. § 6-1108(c); Ballard v. Union Pacific RR. Co., 279 Neb.
638, 781 N.W.2d 47 (2010).

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SAYLOR v. STATE
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Timing of Accrual
In the first of his two primary arguments, Saylor contends
that claim preclusion does not apply because his claims in the
second action had not yet “accrued” under the STCA when he
filed the first action. 19 He does not identify a particular accrual
date for his claims. Instead, he argues that the claims underly-
ing the second action “did not arise” until after he filed the
first action. 20 Saylor’s argument seems to be premised upon
the dates of filing of his tort claims with the State Claims
Board or the board’s final disposition of his claims. The
State responds that Saylor misunderstands when a negligence
action accrues.
[10] In a negligence action, a statute of limitations begins to
run as soon as the cause of action accrues, and an action in tort
generally accrues as soon as the act or omission occurs. This
principle has been referred to as “the occurrence rule.” 21
Saylor’s argument conflates the accrual of a negligence
action with the timing of the filing or final disposition of an
administrative prerequisite to a lawsuit. The accrual analysis
does not depend upon when a tort claim was filed with the
State Claims Board or when the board issued a final disposition
of the claim. Rather, the analysis focuses on when the alleged
act or omission occurred.
Here, the harms alleged in the operative amended com-
plaint were premised on 16 tort claims that Saylor filed with
the State Claims Board in June 2016 and February 2017.
These tort claims alleged various harms occurring on specific
dates between June 2014 and February 2017, many of which,
Saylor asserted, were “continuous” harms that persisted until
he filed the claims with the board. Thus, even to the extent
that the alleged harms were “continuous” until Saylor filed
his tort claims, they necessarily occurred, at the latest, in June
19 Brief for appellant at 9.
20 Id. at 16.
21 Guinn v. Murray, 286 Neb. 584, 837 N.W.2d 805 (2013).

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2016 or February 2017, when Saylor filed his tort claims. The
record shows that Saylor filed the first action months later,
in May 2017. Accordingly, we conclude that all of the harms
alleged in the second action accrued prior to the filing of the
first action. Saylor cannot avoid the application of claim pre-
clusion on this ground.
Same Cause of Action
Saylor’s next argument suggests that it does not matter
whether his claims accrued before he filed the first action. In
this regard, he contends that the second action was based on
a completely different cause of action. Specifically, he argues
that the first action was premised on a tort claim that he filed
with the State Claims Board in 2012, whereas the second
action “raised new and independent claims, occurring at subse-
quent times, involving facts which had yet to occur in the 2012
claim.” 22 In support of his argument, Saylor relies, in part,
on this court’s “prior determination” that the facts underlying
Saylor I were limited to the claims presented in the 2012 tort
claim. 23 The State counters that the factual basis and time-
frame pleaded in both cases were the same, arguing that Saylor
“specifically structured [the first action] to cover the State’s
conduct from 2010 through the present” and that therefore, his
action is precluded. 24
[11,12] A principle underlying the State’s argument is the
rule against “‘splitting the cause of action.’” 25 It is well-settled
law that a party may not split a cause of action. If the party
might have had complete relief in an action that was pros-
ecuted to final judgment, the party may not again vex his or
22 Brief for appellant at 15.
23 Reply brief for appellant at 13.
24 Brief for appellees at 22.
25 See John P. Lenich, Nebraska Civil Procedure § 8:3 at 390 (2023)
(“[a]sserting some but not all of the claims that arise out of the same cause
of action is referred to as ‘splitting the cause of action’”).

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her former adversary with another suit based upon the same
wrong. 26 It is just as well settled that a party may not present
issues for determination and avoid the effect of an estoppel by
withholding proof thereof. 27
[13] We have previously stated that except in special cases,
the plea of res judicata, also referred to as “claim preclusion,”
applies not only to points upon which the court was actually
required by the parties to form an opinion, but to every point
which properly belonged to the subject of litigation and which
the parties exercising reasonable diligence might have brought
forward at the time. 28 We have explained that this rule does not
mean that the prior judgment is
“conclusive of matters not in issue or adjudicated, and
which were not germane to, implied in, or essentially
connected with, the actual issues in the case, although
they may affect the ultimate rights of the parties and
might have been presented in the former action, and is
not applicable to issues the trial of which rests within the
discretion of the court.” 29
The question here is whether the matters asserted in the
second action should have been litigated in the first action.
The State contends that Saylor could have done so by filing an
amended complaint as a matter of right, or by seeking a stay in
the district court until the State Claims Board disposed of his
tort claims. We agree.
The record shows that Saylor might have had complete relief
in the first action, which was prosecuted to final judgment. We
have already determined that all of Saylor’s claims accrued
prior to the filing of the first action. It follows that had Saylor
exercised reasonable diligence, he could have brought all of his
claims forward in that action.
26 Mischke v. Mischke, 253 Neb. 439, 571 N.W.2d 248 (1997).
27 Id.
28 See Vann v. Norwest Bank Neb., 256 Neb. 623, 591 N.W.2d 574 (1999).
29 Id. at 627, 591 N.W.2d at 577.

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Saylor argues that he “did not have ample procedural means”
to bring all of his claims when he filed the first action, because
he had not yet received a final disposition from the State
Claims Board regarding all of his tort claims. 30 More specifi-
cally, he asserts that the board denied his tort claims on June
15, 2017—the day before he filed the second action. We are
not persuaded.
[14] Generally speaking, a claimant cannot file suit under
the STCA until the Risk Manager or State Claims Board makes
a final disposition of the claim, but if no final disposition of a
claim has been made after 6 months, the claimant is permitted
to withdraw the claim and file suit. 31
The record shows that Saylor could have amended his com-
plaint in the first action to include all of his claims. Saylor
filed his tort claims with the State Claims Board in June
2016 and February 2017. Thus, Saylor was entitled to final
disposition or to withdraw his claims, at the latest, in August
2017. The record shows that at that point, the State had not
yet filed a responsive pleading. Saylor did not serve the State
until months later, in November 2017. Saylor was therefore
permitted to file an amended complaint as a matter of right to
include all of his claims, but he failed to do so. 32 This argu-
ment lacks merit.
[15] Moreover, we are not persuaded by Saylor’s argument
regarding this court’s “prior determination” that the facts
underlying Saylor I were limited to the claims presented in
the 2012 tort claim. 33 We read this argument to suggest that
the final judgment in Saylor I conclusively showed that the
30 Reply brief for appellant at 13.
31 § 81-8,227(1).
32 See Neb. Ct. R. Pldg. § 6-1115(a) (“[a] party may amend the party’s
pleading once as a matter of course before a responsive pleading is served
or, if the pleading is one to which no responsive pleading is permitted, the
party may amend it within 30 days after it is served”).
33 Reply brief for appellant at 13.

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two cases did not present the same cause of action. But our
analysis in Saylor I was focused solely on the statute of limi-
tations for filing an action under the STCA; we were not pre-
sented with the question of the actual issues pleaded. A case
is not authority for any point not necessary to be passed on to
decide the case or not specifically raised as an issue addressed
by the court. 34
Now that the issue is specifically raised, we conclude that
the pleadings show that the second action was “‘implied in,
or essentially connected with,’” the actual issues pleaded in
the first action. 35 The amended complaint therein generally
alleged that the State failed to meet the community standard of
care from March 2010 until May 2018, when Saylor filed the
amended complaint in that action. In the case now before us,
the operative amended complaint alleged these same matters,
simply with more detail. And, as noted above, all of the harms
alleged in the second action occurred prior to the filing of the
first action.
On these facts, we conclude that this case is supplementary
to the original action, and not a distinct action. Saylor could
not avoid the effect of claim preclusion merely by failing to
amend his original complaint to introduce the claims in support
of the particular issues framed by his pleadings. That said, our
conclusion does not preclude Saylor from filing claims regard-
ing acts or omissions occurring after the date of filing of his
first action. The defect here is Saylor’s failure to set forth all of
his then-existing claims regarding medical treatment and con-
ditions of confinement in the first action, when he could have,
and should have, done so.
As a final matter, we note that Saylor argues that the State
“acquiesced or agreed” to splitting the cause of action when
34 State v. Kudlacz, 288 Neb. 656, 850 N.W.2d 755 (2014).
35 See Vann v. Norwest Bank Neb., supra note 28, 256 Neb. at 627, 591
N.W.2d at 577.

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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
SAYLOR v. STATE
Cite as 315 Neb. 285
the two cases were consolidated on the State’s motion. 36 The
district court’s judgment expressly stated that Saylor did not
raise this argument below, and the court therefore did not
address it. At oral argument, Saylor disputed this statement,
contending that he set forth a similar argument in his briefing
opposing the motion for judgment on the pleadings.
[16,17] But Saylor assigned no error to the district court’s
statement. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the
error to be considered by an appellate court. 37 Moreover, we
do not agree that Saylor presented to the district court the
precise argument that he now raises on appeal. At oral argu-
ment, he claimed to have done so “in effect.” 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. 38 We decline to
consider this argument.
CONCLUSION
Because the record shows that Saylor could have, and should
have, brought all of his claims in the first action, but failed to
do so, the district court properly dismissed this second action
as barred by claim preclusion. We affirm its judgment.
Affirmed.
Heavican, 	C.J., 	and 	Papik 	and 	Freudenberg, 	JJ., 	not
participating.
36 Reply brief for appellant at 13.
37 State v. Mabior, 314 Neb. 932, 994 N.W.2d 65 (2023).
38 Elbert v. Young, 312 Neb. 58, 977 N.W.2d 892 (2022).