Arbitration and Award. Arbitrability presents a question of
law. 2. Judgments: Appeal and Error. When reviewing questions
of law, an appellate court resolves the questions
independently of the lower court's conclusions.
Trial: Evidence: Appeal and Error. Generally, it is not the
function of an appellate court to review evidence which was
not presented to the trial court.
Evidence: Records: Appeal and Error. A bill of exceptions is
the only vehicle for bringing evidence before an appellate
court; evidence which is not made a part of the bill of
exceptions may not be considered.
Actions: Judicial Notice: Records: Appeal and Error. An
appellate court may take judicial notice of a document,
including briefs filed in an appeal, in a separate but
related action concerning the same subject matter in the same
Contracts: Consideration. Consideration is sufficient to
support a contract if there is any detriment to the promisee
or any benefit to the promisor.
Arbitration and Award: Federal Acts: Contracts. If a contract
containing an arbitration clause involves interstate
commerce, the Federal Arbitration Act, 9 U.S.C. § 1 et
seq. (2012), governs the contract.
Contracts: States: Words and Phrases. Contracts involving
interstate commerce include contracts for services between
parties of different states.
Federal Acts: Contracts: Arbitration and Award: States. The
Federal Arbitration Act, at 9 U.S.C. § 2 (2012),
preempts inconsistent state laws that apply solely to the
enforceability of arbitration provisions in contracts
evidencing a transaction involving commerce.
Neb. 188] Appeal from the District Court for Dodge County:
Geoffrey C. Hall, Judge. Reversed and remanded with
Nicholas A. Buda, Steven D. Davidson, and Lindsay K.
Lundholm, of Baird Holm, L.L.P., and, on brief, Thomas E.
Johnson for appellants.
Douglas R. Novotny, of Novotny Law, L.L.C., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, and Papik, JJ., and
Schreiner, District Judge.
nursing home resident filed suit for personal injuries
against the facility and several of its employees. The
defendants moved to dismiss and compel arbitration pursuant
to an arbitration agreement signed by the resident at the
time of admission. The district court declared that the
arbitration agreement was void and unenforceable on state law
grounds and for being contrary to public policy. Because the
court erred in both respects, we reverse, and remand with
Heineman filed a personal injury action against The
Evangelical Lutheran Good Samaritan Society, doing business
as Good Samaritan Society-Scribner, and several of its
employees (collectively Evangelical Lutheran), for injuries
he sustained as a resident at the Good Samaritan
Society-Scribner nursing home. Heineman is a Nebraska
resident and The Evangelical Lutheran Good Samaritan Society
is a nonprofit North Dakota corporation with its principal
place of business in South Dakota.
Lutheran filed motions to dismiss or stay the proceedings and
to compel arbitration pursuant to an arbitration clause
within the admission agreement Heineman had signed before he
was admitted as a resident in the nursing [300 Neb. 189]
home. The signature on the second page of the arbitration
section was dated February 11, 2015.
agreement included a "Resolution of Legal Disputes"
section in which Heineman agreed to arbitrate "[a]ny
legal controversy, dispute, disagreement or claim arising
between the Parties" by checking a box next to,
"YES I DO wish to arbitrate disputes and I received a
copy of this Resolution of Legal Disputes." In addition
to permitting the signor to either opt into or out of the
arbitration clause, the contract stated that the agreement to
arbitrate disputes was not a condition of admission or of
continued stay. The arbitration agreement further provided:
"This arbitration provision binds all parties whose
claims may arise out of or relate to treatment or service
provided by the center including any spouse or heirs of the
Resident." And by signing the agreement, Heineman agreed
that the "Resolution of Legal Disputes" provision
shall be governed by and interpreted under the Federal
Arbitration Act (FAA).
district court held two hearings on the motions to dismiss
and compel arbitration. The hearings were conducted on
affidavits, one at each hearing, offered by Evangelical
Lutheran. They were ...