Scott T. Boyd, M.D., appellant,
John Cook, M.D., et al., appellees. and Great Plains Diagnostics, LLC, appellee,
Jurisdiction: Appeal and Error. When a
jurisdictional question does not involve a factual dispute,
determination of a jurisdictional issue is a matter of law
which requires an appellate court to reach a conclusion
independent from the trial court's.
Actions: Arbitration and Award: Appeal and
Error. While a court's decision to issue a stay
in an action is generally reviewed under an abuse of
discretion standard of review, the decision whether to stay
proceedings and compel arbitration is a question of law that
an appellate court reviews de novo.
Jurisdiction: Appeal and Error. Before
reaching the legal issues presented for review, it is the
duty of an appellate court to determine whether it has
jurisdiction over the matter before it.
Jurisdiction: Legislature: Appeal and Error.
In order for an appellate court to have jurisdiction over an
appeal, appellate jurisdiction must be specifically provided
by the Legislature.
Judgments: Final Orders: Words and Phrases.
A final judgment is one that disposes of the case either by
dismissing it before hearing is had upon the merits, or after
trial by rendition of judgment for the plaintiff or
Judgments: Words and Phrases. Every
direction of a court or judge, made or entered in writing and
not included in a judgment, is an order.
Final Orders: Appeal and Error. The only
three types of final orders which may be reviewed on appeal
are (1) an order which affects a substantial right and which
determines the action and prevents a judgment, (2) an order
affecting a substantial right made during a special
proceeding, and (3) an order affecting a substantial right
made on summary application in an action after judgment is
Neb. 820] 8. Final Orders.
Under Neb. Rev. Stat. § 25-1315 (Reissue 2016), an order
that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties is not final and is
subject to revision at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of
all the parties.
Dismissal and Nonsuit: Final Orders.
Generally, an order of dismissal is a final, appealable
Actions: Appeal and Error. An order issuing
a stay within an action is generally not appealable.
Actions: Dismissal and Nonsuit: Final
Orders. A stay that is tantamount to a dismissal of
an action or has the effect of a permanent denial of the
requested relief is a final order.
Jurisdiction: Words and Phrases. Subject
matter jurisdiction is the power of a tribunal to hear and
determine a case in the general class or category to which
the proceedings in question belong and to deal with the
general subject matter involved.
Jurisdiction. Parties cannot confer subject
matter jurisdiction upon a judicial tribunal by either
acquiescence or consent, nor may subject matter jurisdiction
be created by waiver, estoppel, consent, or conduct of the
A lack of subject matter jurisdiction may be raised at any
time by any party or by the court sua sponte.
Just as parties may not confer subject matter jurisdiction on
a court by consent, neither may parties deprive a court of
subject matter jurisdiction by their own agreement.
Arbitration and Award: Contracts: Venue.
Arbitration provisions are properly understood as contractual
agreements between parties to resolve their disputes in an
Arbitration and Award: Contracts: Parties. A
contractual arbitration provision creates a contractual right
which may be enforced only by a party to the contract.
Arbitration and Award: Contracts: Waiver.
Like other contractual rights, an agreement to arbitrate can
be waived by the parties.
Arbitration and Award: Contracts.
Arbitration provisions are not self-executing.
from the District Court for Douglas County: Shelly R.
Stratman, Judge. Reversed and remanded for further
A. Klenda and Geoffrey N. Blue, of Klenda, Gessler &
Blue, L.L.C., and Robert W. Futhey and Mark Laughlin, of [298
Neb. 821] Fraser Stryker, PC, L.L.O., for appellant and
appellee Great Plains Diagnostics, LLC.
J. Frost, of McGrath, North, Mullin & Kratz, P.C.,
L.L.O., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and
3 years into litigation between two doctors and various
associated business entities, the district court determined
that because of arbitration and venue provisions in an
employment contract, it lacked jurisdiction. The court
indefinitely stayed a claim for dissolution of one entity and
dismissed all other claims. This appeal followed. Because the
arbitration provision, which neither party sought to enforce,
did not deprive the court of jurisdiction, we reverse, and
remand for further proceedings.
Cook, M.D., owned Midwest Pain Clinic, PC. (Midwest Pain). In
early 2012, Midwest Pain employed Scott T. Boyd, M.D., as an
anesthesiologist. Midwest Pain and Boyd detailed the terms of
Boyd's employment in a written contract.
employment contract contained a jurisdiction and venue
provision: "Except as set forth in [an arbitration
provision], the [c]ourt located in Union County, South
Dakota, shall have jurisdiction and be the venue of all
disputes between [Midwest Pain] and [Boyd], whether such
disputes arise from this [a]greement or otherwise." And
it contained an arbitration provision stating that "any
dispute or controversy arising out of the interpretation or
operation" of the contract "shall be resolved by
arbitration" as set forth in the agreement.
on Boyd's experience operating a urinalysis laboratory,
Boyd, Cook, and Cook's son, Jacob Cook (Jacob), formed
Great Plains Diagnostics, LLC (Great Plains), in early 2013.
[298 Neb. 822] Great Plains was a urinalysis laboratory that
operated in a building owned by an associated entity and in
which Midwest Pain and another associated entity also
operated. Boyd was the majority owner and manager of Great
Plains, while Jacob was its executive director. Jacob was
also the office manager of Midwest Pain.
arose regarding access to documents and billing data, billing
procedures, and billing codes assigned to services provided.
In October 2013, Jacob resigned his positions at both Midwest
Pain and Great Plains to take another job out of state. That
same month, offers regarding a partnership and a draft
separation agreement were refused.
apparently came to a head in early January 2014. On January
10, Boyd's employment with Midwest Pain was terminated
and he was locked out of Great Plains' offices.
April 2014, Cook and Jacob sued to dissolve Great Plains.
They sought dissolution, the appointment of a receiver to
wind up Great Plains' business, and an order enjoining
Boyd from disposing of any of Great Plains' assets.
claims, styled as counterclaims, followed. Boyd and Great
Plains eventually asserted 10 different claims against Cook,
Jacob, Midwest Pain, and other associated entities. Midwest
Pain asserted a counterclaim against Boyd, and it made a
separate counterclaim with another entity against Great
Jacob, Midwest Pain, and two other entities moved for summary
judgment on 7 of the 10 claims made by Boyd and Great Plains,
which motion, in February 2016, the district court overruled
in part and sustained in part. The court granted summary
judgment on four of the claims by Boyd and Great Plains and
on two other claims as ...