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Boyd v. Cook

Supreme Court of Nebraska

February 2, 2018

Scott T. Boyd, M.D., appellant,
John Cook, M.D., et al., appellees. and Great Plains Diagnostics, LLC, appellee,

         1. 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.

         2. 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.

         3. 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.

         4. 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.

         5. 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 defendant.

         6. 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.

         7. 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 rendered.

         [298 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.

         9. Dismissal and Nonsuit: Final Orders. Generally, an order of dismissal is a final, appealable order.

         10. Actions: Appeal and Error. An order issuing a stay within an action is generally not appealable.

         11. 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.

         12. 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.

         13. 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 parties.

         14. __. A lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.

         15. __. 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.

         16. Arbitration and Award: Contracts: Venue. Arbitration provisions are properly understood as contractual agreements between parties to resolve their disputes in an arbitral venue.

         17. Arbitration and Award: Contracts: Parties. A contractual arbitration provision creates a contractual right which may be enforced only by a party to the contract.

         18. Arbitration and Award: Contracts: Waiver. Like other contractual rights, an agreement to arbitrate can be waived by the parties.

         19. Arbitration and Award: Contracts. Arbitration provisions are not self-executing.

         Appeal from the District Court for Douglas County: Shelly R. Stratman, Judge. Reversed and remanded for further proceedings.

          Steven 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.

          James J. Frost, of McGrath, North, Mullin & Kratz, P.C., L.L.O., for appellees.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Cassel, J.


         Nearly 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.


         John 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.

         The 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.

         Based 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.

         Disputes 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.

         Things 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.

         In 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.

         Additional 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 Plains.

         Cook, 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 ...

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