Thomas Cullinane, as Special Administrator for the Estate of Helen Cullinane, deceased, appellee,
Beverly Enterprises - Nebraska, Inc., doing business as Golden LivingCenter - Valhaven, appellant, and Thomas Larson, Jr., DPM, et al., appellees.
Arbitration and Award. Arbitrability
presents a question of law.
Whether a stay of proceedings should be granted and
arbitration required is a question of law.
Judgments: Jurisdiction. A jurisdictional
issue that does not involve a factual dispute presents a
question of law.
Judgments: Appeal and Error. When reviewing
questions of law, an appellate court resolves the questions
independently of the lower court's conclusions.
Arbitration and Award: Appeal and Error. The
standard of review as to the issue of arbitrability summarily
tried to the court is the same as in a bench trial of a law
Judgments: Appeal and Error. In a bench
trial of a law action, a trial court's factual findings
have the effect of a jury verdict and will not be set aside
on appeal unless clearly wrong.
___. In reviewing a judgment awarded in a bench trial of a
law action, an appellate court does not reweigh evidence, but
considers the evidence in the light most favorable to the
successful party and resolves evidentiary conflicts in favor
of the successful party, who is entitled to every reasonable
inference deducible from the evidence.
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, and this is so even
where neither party has raised the issue.
Jurisdiction: Final Orders: Appeal and
Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order
entered [300 Neb. 211] by the court from which the appeal is
taken; conversely, an appellate court is without jurisdiction
to entertain appeals from nonfinal orders.
Federal Acts: Arbitration and Award: Final Orders:
Appeal and Error. In order to determine whether
state law governs the finality for purposes of appeal of an
order denying a motion to compel arbitration under the
Federal Arbitration Act, courts must first apply state
procedural rules to determine whether the order is final for
purposes of appeal and then determine whether the result of
that inquiry would undermine the goals and policies of the
___: ___: ___: ___. A direct appeal from an order denying a
motion to compel arbitration furthers the objectives of the
Federal Arbitration Act by permitting final resolution of the
issue of arbitrability without having to first conclude a
judicial proceeding on the merits, at which point the
arbitral remedy would be rendered essentially meaningless.
Final Orders: Appeal and Error. Under Neb.
Rev. Stat. § 25-1902 (Reissue 2016), the 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.
Arbitration and Award: Final Orders. The
denial of a motion to compel arbitration is a final,
appealable order because it affects a substantial right and
is made in a special proceeding.
Arbitration and Award. Arbitration is a
matter of contract, and a party cannot be required to submit
to arbitration any dispute which he or she has not agreed so
Federal Acts: Arbitration and Award:
Contracts. If arbitration arises from a contract
involving interstate commerce, it is governed by the Federal
Constitutional Law: Waiver: Intent. A party
has a constitutional right to adjudication of a justiciable
dispute, and the law will not find a waiver of that right
absent direct and explicit evidence of actual intent of a
party's agreement to do so.
Arbitration and Award. Unless the parties
clearly and unmistakably provide otherwise, the question of
whether the parties agreed to arbitrate is to be decided by
the court, not the arbitrator.
Arbitration and Award: Contracts. Disputes
about arbitrability for a court to decide include threshold
questions such as whether the parties are bound by a given
arbitration clause or whether an arbitration clause in a
concededly binding contract applies to a particular type of
Neb. 212] 19. Arbitration and Award:
Intent. Parties can agree to arbitrate gateway
questions of arbitrability, such as whether the parties have
agreed to arbitrate or whether their agreement covers a
particular controversy, if they do so with clear and
Arbitration and Award. A valid delegation
clause requires the court to refer a claim to arbitration to
the arbitrator to decide gateway arbitrability issues.
Arbitration and Award: Contracts.
Enforcement of an arbitration agreement involves two
analytical steps: The first is contract formation-whether the
parties entered into any arbitration agreement at all. The
second involves contract interpretation to determine whether
this claim is covered by the arbitration agreement.
Federal Acts: Arbitration and Award: Words and
Phrases. A delegation clause is an agreement to
arbitrate a threshold issue and is simply an additional,
severable, antecedent arbitration agreement the party seeking
arbitration asks the court to enforce, and the Federal
Arbitration Act operates on this additional arbitration
agreement just as it does on any other.
Federal Acts: Arbitration and Award:
Contracts. Arbitration in Nebraska is governed by
the Uniform Arbitration Act as enacted in Nebraska, but if
arbitration arises from a contract involving interstate
commerce, it is governed by the Federal Arbitration Act.
Federal Acts: Arbitration and Award. Where a
transaction falls within the scope of the Federal Arbitration
Act, the substantive issue of whether the motion to compel
arbitration should be granted is a question of federal law.
___: ___. Under 9 U.S.C. § 4 (2012) of the Federal
Arbitration Act, the court shall hear the parties, and upon
being satisfied that the making of the agreement for
arbitration or the failure to comply therewith is not in
issue, the court shall make an order directing the parties to
proceed to arbitration in accordance with the terms of the
agreement. If the making of the arbitration agreement or the
failure, neglect, or refusal to perform the same be in issue,
the court shall proceed summarily to the trial thereof, if no
jury trial be demanded by the party alleged to be in default.
Arbitration and Award. Under Neb. Rev. Stat.
§ 25-2603(a) (Reissue 2016), on application of a party
showing a valid arbitration agreement and the opposing
party's refusal to arbitrate, the court shall order the
parties to proceed with arbitration, but if the opposing
party denies the existence of the agreement to arbitrate, the
court shall proceed summarily to the determination of the
issue so raised and shall order for the moving party;
otherwise, the application shall be denied.
Neb. 213] 27. Federal Acts: Arbitration and
Award. Neb. Rev. Stat. § 25-2603 (Reissue 2016)
does not defeat the Federal Arbitration Act's objective,
expressed in 9 U.S.C. § 4 (2012), that if the making of
the arbitration agreement or the failure, neglect, or refusal
to perform the same be in issue, the court shall proceed
summarily to the trial thereon.
Appeal and Error. An appellate court will
not consider an issue on appeal that was not passed upon by
the trial court.
Federal Acts: Arbitration and Award:
Contracts. The Federal Arbitration Act makes
arbitration agreements valid, irrevocable, and enforceable,
save upon such grounds as exist at law or in equity for the
revocation of any contract.
Contracts: Fraud. In the absence of fraud,
one who signs an instrument without reading it, when one can
read and has had the opportunity to do so, cannot avoid the
effect of one's signature merely because one was not
informed of the contents of the instrument.
___: ___. The doctrine that the carelessness or negligence of
a party in signing a writing estops him or her from afterward
disputing the contents of such writing is not applicable in a
suit thereon between the original parties thereto when the
defense is that such writing, by reason of fraud, does not
embrace the contract actually made.
___: ___. Fraud in the execution goes to the very existence
of the contract, such as where a contract is misread to a
party or where one paper is surreptitiously substituted for
another, or where the party is tricked into signing an
instrument he or she did not mean to execute.
___: ___. Fraud in the inducement goes to the means used to
induce a party to enter into a contract; in such cases, the
party knows the character of the instrument and intends to
execute it, but the contract may be voidable if the
party's consent was obtained by false representations.
Fraud: Proof. A fraudulent misrepresentation
claim requires a plaintiff to establish the following
elements: (1) A representation was made; (2) the
representation was false; (3) when made, the representation
was known to be false or made recklessly without knowledge of
its truth and as a positive assertion; (4) the representation
was made with the intention that the plaintiff should rely on
it; (5) the plaintiff did so rely on it; and (6) the
plaintiff suffered damage as a result.
Fraud. Fraudulent misrepresentations may
consist of half-truths calculated to deceive, and a
representation literally true is fraudulent if used to create
an impression substantially false.
___. Whether a party's reliance upon a misrepresentation
was reasonable is a question of fact.
___. A party is justified in relying upon a representation
made to the party as a positive statement of fact when an
investigation would be required to ascertain its falsity.
Neb. 214] 38. Fraud: Proof:
Circumstantial Evidence. In fraud case, direct
evidence is not essential, but proof of fraud drawn from
circumstantial evidence must not be guesswork or conjecture;
such proof must be rational and logical deductions from facts
and circumstances from which they are inferred.
Trial. Under Neb. Rev. Stat. § 25-1127
(Reissue 2016), in the absence of a request by a party for
specific findings, a trial court is not required to make
detailed findings of fact and need only make its findings
generally for the prevailing party.
Trial: Judgments: Evidence: Appeal and
Error. Where trial is to the court and no request
for specific findings is made, if there is a conflict in the
evidence, an appellate court, in reviewing the judgment
rendered, will presume that controverted facts were decided
by the trial court in favor of the successful party and the
findings will not be disturbed unless clearly wrong.
Affidavits. An affidavit is admissible in
certain enumerated situations, including motion practice,
which includes the use of affidavits relating to preliminary,
collateral, and interlocutory matters.
Judgments: Evidence: Appeal and Error. Even
though an appellate court is, in the absence of oral
testimony, equally capable as the trial court of examining
the evidence and drawing conclusions therefrom and is under a
duty to do so, and even though a case was submitted to the
trial court without oral evidence, the duty of the appellate
court to evaluate the facts does not extend to the right or
duty to make an independent evaluation thereof without regard
to the findings below. In such a case, an appellate court is
loath to overturn the findings of an experienced trial judge
unless in the opinion of the court they are clearly wrong.
Affidavits. Statements in affidavits as to
opinion, belief, or conclusions of law are of no effect.
from the District Court for Douglas County: Gregory M.
Schatz, Judge. Affirmed.
Jeanelle R. Lust and Charles E. Wilbrand, of Knudsen,
Berkheimer, Richardson & Endacott, L.L.R, for appellant.
M. Reed, of Reed Law Offices, PC, L.L.O., for appellee
Cullinane. Heavican, C.J., Miller-Lerman, Cassel, Stacy, and
Neb. 215] FUNKE, J.
Enterprises - Nebraska, Inc., doing business as Golden
LivingCenter - Valhaven (GLCV), appeals the denial of its
motion to dismiss or stay proceedings and compel arbitration.
GLCV moved to enforce an agreement to arbitrate against
Thomas Cullinane, as special administrator for the estate of
his mother, Helen Cullinane; Thomas had filed a wrongful
death action against GLCV. Thomas objected to GLCV's
motion, and the court ruled in his favor, finding the
execution of the "Alternative Dispute Resolution
Agreement" (the ADR Agreement) was not binding upon
Helen or her estate. GLCV appealed, and for the reasons set
forth below, we affirm.
was a resident of GLCV, a skilled nursing facility located in
Valley, Nebraska. She was 88 years old at the time of her
admission in 2010 and suffered from dementia. She passed away
on February 2, 2015. Thomas became the special administrator
of Helen's estate and filed a wrongful death action
against GLCV on behalf of the estate.
filed a motion to dismiss or, in the alternative, stay
proceedings and compel arbitration pursuant to § 4 of
the Federal Arbitration Act (FAA),  in accordance with the terms
of a written arbitration agreement between GLCV and Helen.
GLCV asserted that Eugene Cullinane, Helen's husband, age
84, while acting as Helen's attorney in fact, agreed to
resolve disputes through arbitration when he signed the ADR
Agreement on September 28, 2010, the date Eugene and Helen
were admitted to the facility.
front page of the ADR Agreement contains a title written in
bold and capitalized letters and large font which states:
"Alternative Dispute Resolution Agreement." The
following language, in bold and capitalized letters, appears
[300 Neb. 216] below the title: "This agreement is not a
condition of admission to or continued residence in the
facility." The ADR Agreement states:
The Parties agree that any disputes covered by this Agreement
("Covered Disputes") that may arise between them
shall be resolved exclusively by an ADR process that shall
include mediation and, where mediation is not successful,
binding arbitration. The parties to this Agreement
acknowledge and agree that upon execution by Resident, this
Agreement becomes part of the Admission Agreement, and that
the Admission Agreement evidences a transaction in interstate
commerce governed by the [FAA].
Agreement further includes the following language, in bold
and capitalized letters:
The parties understand, acknowledge, and agree that they are
selecting a method of resolving disputes without resorting to
lawsuits or the courts, and that by entering into this
agreement, they are giving up their constitutional right to
have their disputes decided in a court of law by a judge or
Agreement provides: "Covered Disputes, including the
determination of the scope or applicability of this
Agreement, shall be determined by arbitration . ..." A
section in the agreement titled "Resident's
Understanding" states: "The Resident understands
that ... his or her signing of this Agreement is not a
condition of admission to or residence in the Facility . . .
." The signature page of the document states in bold and
capitalized letters and in large font: "This agreement
governs important legal rights. Please read it carefully and
in its entirety before signing."
hearing on GLCV's motion to compel arbitration, GLCV
offered the affidavit of Trisha Weberg, the business manager
of GLCV. The affidavit included a copy of the durable power
of attorney signed by Helen on July 23, 2008, which appointed
Eugene as her attorney in fact. Weberg, who [300 Neb. 217]
was not present when the ADR Agreement was executed, stated
her personal knowledge concerning the facility's routine
procedure with respect to its resident admissions. Weberg
stated that when she assisted in the admission process, she
would do the following: present the ADR Agreement to the
resident and allow the resident and the resident's family
members to read the paperwork; explain that by signing the
ADR Agreement, the resident would waive his or her right to a
trial and agree to submit any dispute to arbitration, but
state that signing the ADR Agreement was not required to
become a resident at the facility; obtain the resident's
signature; and sign the document on behalf of GLCV. Weberg
stated it is her belief that the normal procedure was
followed with regard to Helen's admission. GLCV did not
present an affidavit from its employee who executed the ADR
Agreement on its behalf.
offered affidavits from himself and Eugene. According to
Eugene's affidavit, he and Helen sought admission to GLCV
when Helen was transferred from the hospital on September 28,
2010. Helen was taken to a room, and a GLCV staff member led
Eugene and Thomas into a small office. Eugene stated,
"[W]e sat down and the female staff member presented me
with a stack of papers which she said was 'the paperwork
I needed to sign to admit my wife' and another stack to
admit myself." He stated, "The staff member handled
the papers, turned the pages and told me she needed my
signature 'here' and directed me where to sign."
Eugene conceded that he signed the ADR Agreement, but stated
that he did so because it was his understanding that if he
did not sign the paperwork, Helen would not have been
admitted to receive health care. He stated he was not
informed that any document in the stack of papers was
optional, that the paperwork included an arbitration
agreement, or that he was waiving his or his wife's right
to a jury trial. Eugene stated he would have not signed the
ADR Agreement had he known what it meant and that it was not
Neb. 218] Thomas stated in his affidavit that when he and
Eugene met with the staff member in the office, she
specifically stated that "'these are standard forms
we need you to sign.'" Thomas stated she turned the
stack of papers to face Eugene, flipped up the bottom half of
the pages, and pointed to the place where she wanted him to
sign. He stated that he was present during the entire meeting
and that at no time did the staff member state any of the
documents were optional or would have the effect of waiving
on the evidence, the district court entered an order which
found that "Eugene ['s] execution of the arbitration
agreement cannot be binding upon Helen . . ., nor her estate,
and that [GLCV's] motion should be dismissed, and [GLCV]