Seldin v. Estate of Silverman , 305 Neb. 185 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/29/2020 09:08 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
SELDIN v. ESTATE OF SILVERMAN
Cite as 305 Neb. 185
Millard R. Seldin, individually and as Trustee of the
Millard R. Seldin Revocable Trust, dated October 9,
1993, et al., appellants and cross-appellees,
and Scott A. Seldin, individually and as
Trustee of the Seldin 2002 Irrevocable Trust,
dated December 31, 2002, appellant,
cross-appellant, and cross-appellee, v.
Estate of Stanley C. Silverman et al.,
appellees, cross-appellants,
and cross-appellees.
Theodore M. Seldin, individually and as Trustee of
the Amended and Restated Theodore M. Seldin
Revocable Trust, dated May 28, 2008, et al.,
appellees, cross-appellants, and cross-appellees,
v. Millard R. Seldin, individually and as
Trustee of the Millard R. Seldin Revocable
Trust, dated October 9, 1993, et al., appellants and
cross-appellees, and Scott A. Seldin, individually
and as Trustee of the Seldin 2002 Irrevocable
Trust, dated December 31, 2002, appellant,
cross-appellant, and cross-appellee.
___ N.W.2d ___
Filed March 6, 2020. Nos. S-19-310, S-19-311.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
2. Judgments: Arbitration and Award: Federal Acts: Appeal and
Error. In reviewing a decision to vacate, modify, or confirm an arbi-
tration award under the Federal Arbitration Act, an appellate court is
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SELDIN v. ESTATE OF SILVERMAN
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obligated to reach a conclusion independent of the trial court’s ruling as
to questions of law. However, the trial court’s factual findings will not
be set aside on appeal unless clearly erroneous.
3. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision
awarding or denying attorney fees will be upheld absent an abuse of
discretion.
4. ____: ____. When an attorney fee is authorized, the amount of the fee
is addressed to the discretion of the trial court, whose ruling will not be
disturbed on appeal in the absence of an abuse of discretion.
5. Pleadings: Judgments: Appeal and Error. A motion to alter or amend
a judgment is addressed to the discretion of the trial court, whose deci-
sion will be upheld in the absence of an abuse of that discretion.
6. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
7. Arbitration and Award: Federal Acts: Contracts. Arbitration in
Nebraska is governed by the Federal Arbitration Act if it arises from
a contract involving interstate commerce; otherwise, it is governed by
Nebraska’s Uniform Arbitration Act.
8. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the power and duty of an appellate court to
determine whether it has jurisdiction over the matter before it.
9. Arbitration and Award: Federal Acts: Jurisdiction: Notice. The
Federal Arbitration Act’s notice requirements are jurisdictional, and fail-
ure to strictly comply deprives the district court of authority under the
Federal Arbitration Act to vacate the arbitration award.
10. Arbitration and Award: Federal Acts: Notice. The Federal Arbitration
Act’s notice requirements are satisfied if the notice provided complies
with Nebraska’s statutory notice requirements.
11. Arbitration and Award: Federal Acts: Legislature. The Federal
Arbitration Act favors arbitration agreements and applies in both state
and federal courts. It also preempts conflicting state laws and fore-
closes state legislative attempts to undercut the enforceability of arbitra-
tion agreements.
12. Arbitration and Award: Motions to Vacate. When arbitration has
already occurred and a party seeks to vacate, modify, or confirm an
award, an extraordinary level of deference is given to the underlying
award itself.
13. Arbitration and Award: Federal Acts: Motions to Vacate. The Federal
Arbitration Act sets forth four grounds under which a court may vacate
an arbitration award, and in the absence of one of these grounds, the
award must be confirmed.
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SELDIN v. ESTATE OF SILVERMAN
Cite as 305 Neb. 185
14. Arbitration and Award: Federal Acts: Motions to Vacate: Proof.
A party seeking to vacate an award for misconduct under 9 U.S.C.
§ 10(a)(3) (2018) of the Federal Arbitration Act must show that he or
she was deprived of a fair hearing.
15. Arbitration and Award: Federal Acts. Under 9 U.S.C. § 10(a)(2)
(2018) of the Federal Arbitration Act, evident partiality exists where
the nondisclosure at issue objectively demonstrates such a degree of
partiality that a reasonable person could assume that the arbitrator had
improper motives.
16. Arbitration and Award: Federal Acts: Motions to Vacate. Under
the Federal Arbitration Act, courts lack authority to vacate or modify
arbitration awards on any grounds other than those specified in 9 U.S.C.
§§ 10 and 11 (2018) of the Federal Arbitration Act.
17. Arbitration and Award: Federal Acts: Motions to Vacate: Public
Policy. Under the Federal Arbitration Act, a court is not authorized to
vacate an arbitration award based on public policy grounds because
public policy is not one of the exclusive statutory grounds set forth in 9
U.S.C. § 10 (2018) of the Federal Arbitration Act.
18. Arbitration and Award: Federal Acts: Contracts: Proof. Pursuant
to 9 U.S.C. § 10(a)(4) (2018) of the Federal Arbitration Act, a court
is authorized to set aside an arbitration award where the arbitrator
exceeded his or her powers. However, it is not enough to show that the
arbitrator committed an error—or even a serious error. The analysis is
whether the arbitrator (even arguably) interpreted the parties’ contract,
not whether he or she got its meaning right or wrong.
19. Attorney Fees. Attorney fees shall be awarded against a party who
alleged a claim or defense that the court determined was frivolous, inter-
posed any part of the action solely for delay or harassment, or unneces-
sarily expanded the proceeding by other improper conduct.
20. Actions: Attorney Fees: Words and Phrases. A frivolous action is one
in which a litigant asserts a legal position wholly without merit; that is,
the position is without rational argument based on law and evidence to
support the litigant’s position. The term frivolous connotes an improper
motive or legal position so wholly without merit as to be ridiculous.
21. Actions. Any doubt about whether a legal position is frivolous or taken
in bad faith should be resolved in favor of the one whose legal position
is in question.
22. Appeal and Error. An appeal or error proceeding, properly perfected,
deprives the trial court of any power to amend or modify the record as
to matters of substance.
23. Arbitration and Award: Federal Acts: Contracts. Under the Federal
Arbitration Act, arbitration is a matter of contract, and courts must
enforce arbitration contracts according to their terms.
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24. Arbitration and Award. An evident material mistake is an error that is
apparent on the face of the record and would have been corrected had
the arbitrator known at the time.
25. Attorney Fees: Appeal and Error. Ordinarily, an improper calcula-
tion of attorney fees would require a remand in order to reconfigure
the award. However, when the record is sufficiently developed that a
reviewing court can apply the law to the facts and calculate a fair and
reasonable fee without resorting to remand, that route is available to the
appellate court.
26. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
27. Judgments: Appeal and Error. Generally, under the acceptance of ben-
efits rule, an appellant may not voluntarily accept the benefits of part of
a judgment in the appellant’s favor and afterward prosecute an appeal or
error proceeding from the part that is against the appellant.
28. ____: ____. The acceptance of the benefits rule does not apply when
the appellant has conceded to be entitled to the thing he or she has
accepted and where the appeal relates only to an additional claim on his
or her part.
29. Judgments: Proof: Appeal and Error. In asserting that the accept­
ance of benefits rule precludes an appeal, the burden is on the party
asserting the rule to demonstrate that the benefits of the judgment were
accepted.
Appeals from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed as modified.
Jason M. Bruno and Robert S. Sherrets, of Sherrets, Bruno
& Vogt, L.L.C., for appellants.
Bartholomew L. McLeay, of Kutak Rock, L.L.P., for appel-
lee Scott A. Seldin, individually.
Robert L. Lepp and Mathew T. Watson, of McGill, Gotsdiner,
Workman & Lepp, P.C., L.L.O., and Sean K. McElenney, of
Bryan, Cave, Leighton & Paisner, L.L.P., for Omaha Seldin
appellees.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
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SELDIN v. ESTATE OF SILVERMAN
Cite as 305 Neb. 185
Heavican, C.J.
I. INTRODUCTION
This is an appeal from a judgment of the district court for
Douglas County, confirming an arbitration award of $2,997,031
under the Federal Arbitration Act (FAA)1 and awarding attor-
ney fees as a sanction under Neb. Rev. Stat. § 25-824 (Reissue
2016).
II. BACKGROUND
These two cases arose out of an arbitration between family
members designated as the “Omaha Seldins” and the “Arizona
Seldins.” The term “Omaha Seldins” refers to the following
individuals, entities, and trusts: Theodore M. Seldin, indi-
vidually and in his capacity as trustee of the Amended and
Restated Theodore M. Seldin Revocable Trust, dated May
28, 2008; Howard Scott Silverman as trustee of the Amended
and Restated Stanley C. Silverman Revocable Trust, dated
August 26, 2006; Silverman Holdings, LLC, a Nebraska lim-
ited liability company; SCS Family, LLC, a Nebraska limited
liability company; TMS & SNS Family, LLC, a Nebraska
limited liability company; Sarah N. Seldin and Irving B.
Epstein, as trustees of the Theodore M. Seldin and Sarah N.
Seldin Children’s Trust, dated January 1, 1995; Uri Ratner as
trustee of the Stanley C. Silverman and Norma R. Silverman
Irrevocable Trust Agreement (2008), dated April 10, 2008;
John W. Hancock, Irving B. Epstein, and Randall R. Lenhoff
as trustees of the Theodore M. Seldin and Sarah N. Seldin
Irrevocable Trust Agreement (2008), dated May 12, 2008.
The term “Arizona Seldins” refers to the following individ­
uals, entities, and trusts: Millard R. Seldin, individually and
as trustee of the Millard R. Seldin Revocable Trust, dated
October 9, 1993; Scott A. Seldin, individually and as trustee
of the Seldin 2002 Irrevocable Trust, dated December 13,
2002; Seldin Real Estate, Inc., an Arizona corporation; Kent
Circle Investments, LLC, an Arizona limited liability company;
1
9 U.S.C. §§ 1 through 16 (2018).
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and Belmont Investments, LLC, an Arizona limited liabil-
ity company.
For a period of more than 50 years, the parties held joint
ownership interests as the Seldin Company in numerous enti-
ties located in the Omaha, Nebraska, area. The three princi-
pals of the Seldin Company were Millard; Millard’s younger
brother, Theodore; and Millard’s brother-in-law, Stanley C.
Silverman. The Seldin Company’s principal place of busi-
ness was Omaha. However, in 1987, Millard began relocating
the business operations from Omaha to Scottsdale, Arizona.
Theodore and Stanley co-owned the company, and they agreed
to manage the jointly owned properties through management
agreements.
In 2007, the Arizona Seldins (specifically Millard and
Millard’s son, Scott) began to question how Theodore and
Stanley were managing the jointly owned properties. In 2010,
the Arizona Seldins terminated the management agreements
and the parties entered into an agreement to separate their
joint interests in real estate assets through a bidding process.
The “Separation Agreement” included a provision whereby the
parties agreed to resolve all “Ancillary Claims” exclusively
through binding arbitration before arbitrator Stefan Tucker
with the Venable, LLP, law firm in Washington, D.C. In case
of Tucker’s inability to serve as arbitrator, the agreement
named a Venable partner as his successor. If both Tucker and
the successor were unable to serve as arbitrator, the agreement
provided that Venable’s managing partner was responsible for
identifying a substitute successor. The agreement also included
provisions defining the scope of arbitration, as well as a provi-
sion that the “Commercial Division Rules” of the American
Arbitration Association (AAA) would govern.
After the bidding process was completed, the parties began
arbitration before Tucker in October 2011. While the arbitra-
tion was ongoing, the Arizona Seldins filed three lawsuits in
the district court for Douglas County regarding their claims or,
alternatively, seeking to remove Tucker as arbitrator. The dis-
trict court dismissed the lawsuits and compelled the Arizona
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SELDIN v. ESTATE OF SILVERMAN
Cite as 305 Neb. 185
Seldins back to arbitration after finding the FAA governed the
arbitration provision in the agreement. The Arizona Seldins
then filed a demand with the AAA, seeking to disqualify
Tucker as the arbitrator. The AAA denied the request; how-
ever, Tucker subsequently resigned and neither the succes-
sor arbitrator nor Venable was willing to participate in the
arbitration. The parties agreed to select an arbitrator through
the AAA, and Eugene R. Commander (hereinafter arbitrator)
was appointed.
Arbitration resumed in October 2013. Due to the number
of claims, each involving several independent causes of action
and affirmative defenses, the arbitrator proposed bifurcating
each claim to address liability and damage claims in separate
hearings when necessary. The parties agreed to the proposal,
and a schedule of hearings was adopted.
After extensive discovery was conducted, 11 evidentiary
hearings took place over a span of 14 months. Pursuant to
the separation agreement, the hearings took place in Omaha.
During the 53 days of hearings, 58 fact and expert witnesses
testified and 1,985 exhibits were admitted into evidence. As
permitted by the AAA’s rules,2 the arbitrator issued 12 separate
interim awards at the end of hearings in which determinations
of liability or damages had been made. The parties agreed that
these interim awards were not considered final awards and that
a final award would be issued after the arbitration had closed.
The parties also agreed that the entities and individuals that
made up each of the two parties were jointly and severally
liable for any award issued by the arbitrator.
At some point during the arbitration proceedings, the Arizona
Seldins asserted that the Omaha Seldins’ lack of tender of one
of its assets, Sky Financial Securities, LLC (Sky Financial),
was a defense to damages under the Arizona Securities Act.
Sky Financial is an Arizona limited liability company, cre-
ated as part of a plan to acquire and operate a chain of pizza
2
American Arbitration Association, Commercial Arbitration Rules and
Mediation Procedures R-37 at 24 (Oct. 1, 2013).
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restaurants in numerous states. In response, the Omaha Seldins
requested that the arbitrator take possession of Sky Financial
as a form of interpleader so as to permit the award of the asset
to the appropriate party after a determination was made. The
Arizona Seldins did not object to the procedure, and when
asked whether the assignment as a form of interpleader was
acceptable to both sides, the Arizona Seldins stated, “Yes.” The
Omaha Seldins then tendered Sky Financial to the arbitrator
by assignment.
In one of the interim awards, the arbitrator determined that
the Arizona Seldins had breached their fiduciary duties and
engaged in securities law violations relating to Sky Financial.
After finding that none of the affirmative defenses raised by the
Arizona Seldins were meritorious, the arbitrator awarded the
Omaha Seldins $1,962,528 in damages for their lost corporate
opportunities claims, as well as an additional $3,135,681 in
recessionary damages for the securities violation claims.
On April 12, 2017, the arbitration was officially closed.
On April 27, the arbitrator issued a final net award in favor
of the Omaha Seldins and against the Arizona Seldins in the
amount of $2,997,031, plus postaward simple interest. The
final award incorporated each of the prior interim awards
issued and found the Arizona Seldins jointly and severally
liable for the entire amount.
On May 23, 2017, the Omaha Seldins filed a motion to con-
firm the final award in district court. Opposing confirmation,
the Arizona Seldins filed a motion seeking to modify, correct,
and/or vacate the award. The Arizona Seldins argued, summa-
rized, that the arbitrator (1) engaged in misbehavior regarding
assignment of the Sky Financial asset, and thus the Omaha
Seldins lacked standing after the assignment; (2) failed to
provide a reasoned award on three of the Arizona Seldins’ key
affirmative defenses; (3) exceeded his power in awarding legal
fees and expenses to the Omaha Seldins, because the separa-
tion agreement precluded the award of attorney fees; and (4)
materially miscalculated the amount of prejudgment interest by
applying the incorrect interest rate or, alternatively, exceeded
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his power in awarding damages that included the calculated
amount of prejudgment interest.
Scott, one of the Arizona Seldins, sought further and sepa-
rate relief. Scott argued that with regard to the Sky Financial
claims, the arbitrator made an “evident material mistake in
the description of ‘Respondents’” and made an award on mat-
ters not submitted to him. Scott alternatively argued that the
arbitrator exceeded his power or imperfectly executed it, by
issuing an award of liability against Scott on those claims. In
addition, Scott filed multiple applications seeking to vacate,
confirm, and/or modify some of the interim awards in com-
panion cases CI 16-7509, CI 16-8394, CI 17-506, CI 17-651,
and CI 17-3637. The district court held that the interim
awards were nonfinal arbitration orders and dismissed the
applications.
On May 3, 2018, the district court issued an order sustain-
ing the Omaha Seldins’ motion to confirm the arbitration
award and overruling the Arizona Seldins’ motion to vacate the
award. The district court also awarded the Omaha Seldins
an amount equal to the attorneys’ fees and costs [the
Omaha Seldins] incurred in resisting [the Arizona
Seldins’] application seeking vacation or modification
of the Final Award and in seeking dismissal of the vari-
ous applications (Case Nos. CI 16-7509; CI 16-8394;
CI 17-506; CI 17-651; and CI 17-3637) . . . Scott . . . filed
seeking to modify, vacate, or confirm the Arbitrator’s
Interim Awards [under Neb. Rev. Stat. “§ 25-834”].
The district court had mistakenly referred to the statute autho-
rizing the sanction as Neb. Rev. Stat. § 25-834 (Reissue 1995),
instead of § 25-824.
On July 30, 2018, the Omaha Seldins offered into evi-
dence affidavits with attached fee statements from two law
firms, demonstrating the amount of fees incurred on behalf of
the Omaha Seldins in resisting the Arizona Seldins’ motion
to vacate and in seeking dismissal of Scott’s interim award
applications. The affidavits established that the law firm of
McGill, Gotsdiner, Workman & Lepp, P.C., L.L.O. (McGill),
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had incurred $131,184.45 in fees and that the law firm of
Bryan Cave Leighton Paisner LLP (Bryan Cave) had incurred
$211,676.50 in fees, both on behalf of the Omaha Seldins. The
exhibit containing the McGill firm’s statement of fees had been
redacted for privilege purposes. At a subsequent hearing, the
Omaha Seldins offered an unredacted version of the McGill
firm’s fee statement, which the court received into evidence
under seal.
On February 28, 2019, the district court issued its order
denying the Arizona Seldins’ and Scott’s motions to alter or
amend. In the same order, the district court awarded the Omaha
Seldins attorney fees in the amount of $131,184.45.
On June 3, 2019, the Omaha Seldins filed a motion for
order nunc pro tunc, requesting that the district court modify
the amount of attorney fees to include Bryan Cave’s fees of
$211,676.50, for a total award of $342,860.95. After a hear-
ing on the motion, in a written order dated August 26, 2019,
the district court denied the Omaha Seldins’ motion for order
nunc pro tunc. In its order, the district court stated that it had
“clearly intended to award attorney fees to [the Omaha Seldins]
in an amount, as stated in the Court’s Order of February 28,
2019, equal to the attorney fees and costs incurred,” but denied
the motion after concluding that “[a]n Order Nunc Pro Tunc
[could not] be used to enlarge the judgment or substantially
amend[] the judgment even though said judgment was not the
order intended.”
On May 11, 2018, Scott filed a motion to alter or amend
the district court’s May 3 order. Scott argued that the award of
attorney fees and costs was beyond the amount permitted as
damages and that the arbitrator’s award of attorney fees was
improper. The motion further asserted that the order had refer-
enced § 25-834 as authorizing the sanction against the Arizona
Seldins, but that § 25-834 is unrelated to an award of attorney
fees and had been repealed by the Legislature in 2002.
The Arizona Seldins also filed a motion to alter or amend
the order. The motion incorporated Scott’s arguments and
additionally asserted that the district court failed to specifically
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address some of the Arizona Seldins’ prior arguments, includ-
ing whether the final award violated the automatic bankruptcy
stay, whether the final award violated Nebraska’s public policy
and resulted in a massive windfall to the Omaha Seldins, and
whether the arbitrator engaged in evident partiality.
On February 28, 2019, the district court issued a 13-page
order detailing its findings and overruling both motions to
alter or amend the May 3, 2018, order. The February 28,
2019, order included a nunc pro tunc modification, substituting
§ 25-824 for the references to § 25-834 in the previous order.
When discussing the sanction ordered against the Arizona
Seldins, the district court noted that its May 3, 2018, order had
“repeatedly identified the absence of rational factual or legal
basis to support [the Arizona Seldins’] theories of modifying
or vacating the Final Award.” The district court articulated
that “[w]hat should have been a fairly simple procedure, [the
Arizona Seldins] literally turned into a re-litigation of the
Arbitration itself.”
The Arizona Seldins appeal the district court’s order con-
firming the award and the district court’s order of sanctions
under § 25-824. Scott, individually, filed a cross-appeal assert-
ing that the final award against him should be modified, cor-
rected, or vacated by law and that the district court abused its
discretion in imposing sanctions and overruling his motion to
alter or amend. The Omaha Seldins also filed a cross-appeal,
challenging the amount of attorney fees and costs ordered by
the district court and the district court’s denial of the Omaha
Seldins’ motion for order nunc pro tunc. The Arizona Seldins
subsequently filed a motion to dismiss the Omaha Seldins’
cross-appeal, claiming the Omaha Seldins’ registration of the
district court’s judgment with an Arizona state court constituted
an acceptance of the benefits of the judgment and, thus, pre-
cluded them from appealing the judgment.
We granted the parties’ petition to bypass the Nebraska
Court of Appeals, and the two cases, S-19-0310 and S-19-0311,
have been consolidated for purposes of oral argument and
disposition.
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III. ASSIGNMENTS OF ERROR
The Arizona Seldins’ assignments, renumbered and restated,
are that the district court erred in (1) failing to vacate the Sky
Financial award because the award was secured through mis-
behavior by the arbitrator; (2) failing to vacate the final award
because the Sky Financial award violates Nebraska public pol-
icy by creating a massive windfall for the Omaha Seldins; (3)
confirming the arbitrator’s award of attorney fees because the
award exceeded the scope of the separation agreement, which
expressly prohibited an award of attorney fees; (4) awarding
sanctions under § 25-824; and (5) excluding evidence of the
Omaha Seldins’ acting contrary to the separation agreement
and the award by currently seeking additional damages in other
litigation for the same Sky Financial investment.
Scott’s assignments of error on cross-appeal, summarized,
are that the district court erred in (1) failing to modify or cor-
rect an evident material mistake in the description of respond­
ents in the final award relating to him; (2) failing to vacate the
final award on the ground of arbitrator misbehavior; (3) fail-
ing to vacate the final award on the ground that the arbitrator
exceeded his authority in regard to the claims bar date; and (4)
imposing sanctions pursuant to § 25-824 and denying Scott’s
motion to alter or amend the district court’s order regarding
the sanctions.
The Omaha Seldins assign on cross-appeal that the district
court erred in (1) denying their motion for order nunc pro
tunc and (2) failing to award the Omaha Seldins their reason-
able attorney fees and costs incurred. While not specifically
assigned as error, the Omaha Seldins also assert that the
Arizona Seldins’ public policy argument is time barred.
IV. STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a factual
dispute is determined by an appellate court as a matter of law.3
3
J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893
(2017).
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[2] In reviewing a decision to vacate, modify, or confirm an
arbitration award under the FAA, an appellate court is obligated
to reach a conclusion independent of the trial court’s ruling as
to questions of law.4 However, the trial court’s factual findings
will not be set aside on appeal unless clearly erroneous.5
[3,4] On appeal, a trial court’s decision awarding or deny-
ing attorney fees will be upheld absent an abuse of discretion.6
When an attorney fee is authorized, the amount of the fee is
addressed to the discretion of the trial court, whose ruling
will not be disturbed on appeal in the absence of an abuse of
discretion.7
[5] A motion to alter or amend a judgment is addressed to
the discretion of the trial court, whose decision will be upheld
in the absence of an abuse of that discretion.8
[6] A judicial abuse of discretion exists when the reasons or
rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.9
V. ANALYSIS
1. Appeal Is Governed by FAA
[7] Prior to addressing the arbitration issues raised by the
parties on appeal, we must determine which law governs—the
Uniform Arbitration Act (UAA)10 or the FAA. Arbitration in
Nebraska is governed by the FAA if it arises from a contract
involving interstate commerce; otherwise, it is governed by the
4
Ronald J. Palagi, P.C. v. Prospect Funding Holdings, 302 Neb. 769, 925
N.W.2d 334 (2019).
5
Id.
6
White v. Kohout, 286 Neb. 700, 839 N.W.2d 252 (2013).
7
Rapp v. Rapp, 252 Neb. 341, 562 N.W.2d 359 (1997).
8
Breci v. St. Paul Mercury Ins. Co., 288 Neb. 626, 849 N.W.2d 523 (2014).
9
Id.
10
See Neb. Rev. Stat. §§ 25-2601 to 25-2622 (Reissue 2016 & Cum. Supp.
2018).
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UAA.11 The district court determined that the issues presented
in this case were governed by the FAA. We agree. Arbitration
that arises from a contract involving interstate commerce is
governed by the FAA.12 Because this case arose from a com-
mercial dispute involving properties and companies located in
multiple states, the arbitration agreement clearly involves inter-
state commerce and thus is governed by the FAA.
2. Motion to Vacate Was Timely
[8] Before reaching the legal issues presented for review,
it is the power and duty of an appellate court to determine
whether it has jurisdiction over the matter before it.13 The
Omaha Seldins claim the Arizona Seldins are precluded from
seeking modification or vacatur of the final award on public
policy grounds because this argument was not raised within 3
months of the final order being issued as required by § 12 of
the FAA.
[9] Section 12 of the FAA sets forth the specific service
requirements for motions to vacate, modify, or correct an
award and requires notice of an application seeking judicial
vacatur to “be served upon the adverse party or his attorney
within three months after the award is filed or delivered.” This
court has held that these notice requirements are jurisdictional
and that failure to strictly comply deprives the district court
of authority under the FAA to vacate the arbitration award.14
And, where the district court lacks jurisdiction, this court lacks
jurisdiction.15
The relevant portion of § 12 provides:
Notice of a motion to vacate, modify, or correct an
award must be served upon the adverse party or his
11
Garlock v. 3DS Properties, 303 Neb. 521, 930 N.W.2d 503 (2019).
12
Aramark Uniform & Career Apparel v. Hunan, Inc., 276 Neb. 700, 757
N.W.2d 205 (2008).
13
State v. Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018).
14
See Karo v. Nau Country Ins. Co., 297 Neb. 798, 901 N.W.2d 689 (2017).
15
State v. Dorcey, 256 Neb. 795, 592 N.W.2d 495 (1999).
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attorney within three months after the award is filed or
delivered. If the adverse party is a resident of the district
within which the award was made, such service shall be
made upon the adverse party or his attorney as prescribed
by law for service of notice of motion in an action in
the same court. If the adverse party shall be a nonresi-
dent then the notice of the application shall be served
by the marshal of any district within which the adverse
party may be found in like manner as other process of
the court.
[10] Thus, the FAA’s notice requirements are satisfied if
the notice provided complies with Nebraska’s statutory notice
requirements. Neb. Rev. Stat. § 25-910 (Reissue 2016) requires
that the notice be in writing and provides that it
shall state (1) the names of the parties to the action or
proceeding in which it is to be made, (2) the name of
the court or judge before whom it is to be made, (3) the
place where and the day on which it will be heard, (4)
the nature and terms of the order or orders to be applied
for, and (5) if affidavits are to be used on the hearing, the
notice shall state that fact. It shall be served a reasonable
time before the hearing.
The record reflects that the final arbitration award was
issued on April 27, 2017. The Arizona Seldins moved to mod-
ify, correct, or vacate the award on July 25. On the same day,
the Arizona Seldins provided the other parties with notice of
the motion via U.S. mail and electronic mail. While the motion
did not specifically assert the Arizona Seldins’ public policy
argument, the notice included each of the five requirements
set forth in § 25-910 and was provided within 3 months of the
final order being issued. The Arizona Seldins’ notice complied
with Nebraska’s statutory notice requirements; thus, the notice
requirements under § 12 of the FAA were satisfied. The public
policy argument was timely raised, and therefore, this court has
jurisdiction over the claim.
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3. Claims by Arizona Seldins
and Scott
(a) Arbitrator Misbehavior
In their first assignment of error, the Arizona Seldins claim
the district court erred in failing to vacate the Sky Financial
award because the award was secured through misbehavior by
the arbitrator. On cross-appeal, Scott also asserts that the arbi-
trator’s acceptance of Sky Financial constituted misconduct.
Scott further asserts that the Arizona Seldins could not have
accepted or consented to the interpleader because the transfer
abrogated the Omaha Seldins’ interest in Sky Financial and
thus the interpleader never existed. Scott also claims that the
interpleader procedure was not disclosed or explained and that
he “should not be bound by a secret interpleader procedure of
which he was never informed since he had no need for concern
regarding any securities claim at the time the purported inter-
pleader was first proposed for that purpose.”16
[11,12] Congress enacted the FAA to provide for “expe-
dited judicial review to confirm, vacate, or modify arbitration
awards.”17 The FAA favors arbitration agreements and applies
in both state and federal courts.18 It also preempts conflict-
ing state laws and “‘foreclose[s] state legislative attempts to
undercut the enforceability of arbitration agreements.’”19 When
arbitration has already occurred and a party seeks to vacate,
modify, or confirm an award, “‘“an extraordinary level of
deference” [is given] to the underlying award itself.’”20 The
U.S. Supreme Court has instructed that under the FAA, a court
16
Brief for appellee Scott on cross-appeal at 24.
17
Hall Street Associates, L. L. C. v. Mattel, Inc., 552 U.S. 576, 578, 128 S.
Ct. 1396, 170 L. Ed. 2d 254 (2008).
18
Preston v. Ferrer, 552 U.S. 346, 128 S. Ct. 978, 169 L. Ed. 2d 917 (2008).
19
Id., 552 U.S. at 353 (quoting Southland Corp. v. Keating, 465 U.S. 1, 104
S. Ct. 852, 79 L. Ed. 2d 1 (1984)).
20
SBC Advanced v. Communications Workers of America, 794 F.3d 1020,
1027 (8th Cir. 2015).
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may vacate an arbitrator’s decision “‘only in very unusual
circumstances.’”21
[13] The FAA sets forth four grounds under which a court
may vacate an arbitration award, and in the absence of one of
these grounds, the award must be confirmed.22 These grounds
are as follows:
(1) where the award was procured by corruption, fraud,
or undue means;
(2) where there was evident partiality or corruption in
the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in
refusing to postpone the hearing, upon sufficient cause
shown, or in refusing to hear evidence pertinent and mate-
rial to the controversy; or of any other misbehavior by
which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or
so imperfectly executed them that a mutual, final, and
definite award upon the subject matter submitted was not
made.23
Both the Arizona Seldins and Scott claim the arbitra-
tor engaged in misbehavior by accepting ownership of Sky
Financial. We reject this claim because the Arizona Seldins
expressly agreed to the transfer of Sky Financial during the
arbitration proceedings, and there is no evidence that the arbi-
trator engaged in misconduct by accepting the transfer.
The Omaha Seldins attempted to “tender” Sky Financial as
a form of interpleader after the Arizona Seldins asserted that a
lack of tender is a defense under the Arizona Securities Act in
regard to damages. The Omaha Seldins transferred ownership
of Sky Financial to the arbitrator “‘for purposes of effectuat-
ing the relief to be awarded.’” The relief contemplated was the
21
Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 568, 133 S. Ct. 2064,
186 L. Ed. 2d 113 (2013).
22
Hall Street Associates, L. L. C., supra note 17.
23
9 U.S.C. § 10(a).
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award of the asset to the appropriate party after a determination
had been made.
At the time the assignment was made, the following collo-
quy occurred:
ARBITRATOR: Well, I’m in uncharted waters here.
I guess my first question is why would the assignment
come to me?
[Counsel for the Omaha Seldins]: It’s largely in the
sense of an interpleader. Is this to be — I mean, it empha-
sizes the point which is the impossibility, to whom do
we tender, do we tender to Millard, do we tender to Sky
Financial, to whomever it is that it is deemed you think,
to the extent it isn’t impossible and excused by impos-
sibility, you’re welcome to determine to whomever it
should be tendered.
....
ARBITRATOR: Well, the only way I know how to deal
with this right now is to consider this an act of interplead-
ing these interests to me. I’m not an officer of the court,
but I do have jurisdiction over this matter, so for the time
being, at least, I’ll accept them. With that understanding
in mind. Is that acceptable to both sides?
[Counsel for the Arizona Seldins]: Yes.
[14] “A party seeking to vacate an award for misconduct
under § 10(a)(3) must show that he [or she] was ‘deprived of a
fair hearing.’”24 When a party “‘who contests the merits of an
arbitration award in court fails to first present the challenges on
the merits to the arbitrators themselves, review is compressed
still further, to nil.’”25 Here, the district court noted that the
Arizona Seldins appeared to have consented to the arbitra-
tor’s acceptance of the assignment as a form of interpleader.
24
Brown v. Brown-Thill, 762 F.3d 814, 820 (8th Cir. 2014) (quoting Grahams
Service Inc. v. Teamsters Local 975, 700 F.2d 420 (8th Cir. 1982)).
25
Medicine Shoppe Intern. v. Turner Investments, 614 F.3d 485, 489 (8th Cir.
2010) (quoting Intern. Broth. v. Hope Elec. Corp., 380 F.3d 1084 (8th Cir.
2004)).
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We agree. Not only did the Arizona Seldins not object to the
assignment at the time it was made, but they agreed that the
transfer as an act of interpleading was acceptable after the
purpose of the procedure was explained. By consenting to
the assignment, the Arizona Seldins waived the argument that
the arbitrator’s acceptance of the transfer constituted miscon­
duct. And, the record clearly refutes Scott’s claim that the
intended interpleader was not disclosed or explained.
[15] Furthermore, while the Arizona Seldins’ attempt to
invoke the grounds set forth in § 10(a)(3) of the FAA by using
the term “misconduct,” their argument focuses only on the
arbitrator’s possible partiality as the purported owner of Sky
Financial. Under § 10(a)(2), a court may vacate an award for
the arbitrator’s “evident partiality.” However, this is a “‘heavy
burden’”26 because the standard “‘is not made out by the
mere appearance of bias.’”27 “Evident partiality exists where
the non-disclosure at issue ‘objectively demonstrate[s] such a
degree of partiality that a reasonable person could assume that
the arbitrator had improper motives.’”28
The Arizona Seldins assert that the arbitrator’s taking actual
possession of Sky Financial without first securing mutual con-
sent of the parties in writing and making it part of the record
disqualified him as an interested party under Neb. Rev. Stat.
§ 24-739 (Reissue 2016). Section 24-739 provides, in relevant
part, that a judge shall be disqualified in any case in which he
or she is a party or interested except by mutual consent of the
parties, which mutual consent is in writing and made part of
the record.
The Arizona Seldins contend that § 24-739 applies to arbitra-
tors as well as judges per this court’s instruction that “‘judges
26
Will. v. National Football League, 582 F.3d 863, 885 (8th Cir. 2009)
(quoting Choice Hotels Intern. v. SM Property Management, 519 F.3d 200
(4th Cir. 2008)).
27
Id.
28
Id. (quoting Dow Corning Corp. v. Safety National Cas. Corp., 335 F.3d
742 (8th Cir. 2003)).
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and arbitrators are subject to the same ethical standards.’”29
However, this court has expressly rejected a “judicial ethics”
standard when analyzing the FAA’s requirement of “evident
partiality.” In Dowd v. First Omaha Sec. Corp.,30 we held that
“‘“evident partiality” within the meaning of 9 U.S.C. § 10 will
be found where a reasonable person would have to conclude
that an arbitrator was partial to one party to the arbitration.’”
Here, the record contains no evidence that the arbitrator
engaged in misconduct or partiality by accepting the assignment
of Sky Financial. Rule R-37(a) of the AAA rules, which was
incorporated into the parties’ separation agreement, provides
that “[t]he arbitrator may take whatever interim measures he or
she deems necessary, including injunctive relief and meas­ures
for the protection or conservation of property and disposition
of perishable goods.” Moreover, the Arizona Seldins’ argument
that the arbitrator’s acceptance of Sky Financial constituted
misconduct is confuted by their express acceptance of the pro-
cedure. This argument is without merit.
(b) Public Policy
In their second assignment of error, the Arizona Seldins
assert that the district court erred in failing to vacate the final
award because the Sky Financial award violates Nebraska
public policy by creating a massive windfall for the Omaha
Seldins. The Arizona Seldins argue that the Omaha Seldins
profited substantially from Sky Financial and that the award
of damages results in a double recovery and windfall for the
Omaha Seldins in violation of public policy. The Arizona
Seldins further assert that a court may refuse to enforce an
arbitration award on the ground that it is contrary to public
29
See brief for appellants at 24 (quoting Barnett v. City of Scottsbluff, 268
Neb. 555, 684 N.W.2d 553 (2004)).
30
Dowd v. First Omaha Sec. Corp., 242 Neb. 347, 358, 495 N.W.2d 36, 43
(1993) (quoting Morelite Const. v. N.Y.C. Dist. Council Carpenters, 748
F.2d 79 (2d Cir. 1984)).
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policy. In making this assertion, the Arizona Seldins rely on
this court’s prior holding in State v. Henderson.31
In Henderson, a Nebraska State Patrol officer had been ter-
minated based on his membership in a Ku Klux Klan-affiliated
organization. An arbitrator determined that the State Patrol had
violated the officer’s constitutional rights because his affilia-
tion with the organization was not “‘just cause’” for termina-
tion.32 The arbitrator issued an award ordering the officer to be
reinstated.33 The district court vacated the award after conclud-
ing that the officer’s reinstatement violated Nebraska public
policy, and this court affirmed the judgment.34
Unlike the present case, Henderson was governed by
Nebraska’s UAA.35 However, this court found none of the
UAA’s statutory bases for vacating an award applied.36 Noting
that the applicable provisions in the UAA and the FAA were
similar, the majority, in a 4-to-2 decision, relied on three U.S.
Supreme Court cases applying the FAA when holding that an
arbitration award could be vacated on public policy grounds.37
The majority in Henderson held that a court may refuse
to enforce an arbitration award that is contrary to a public
policy when the policy is explicit, well defined, and domi-
nant. The majority concluded that Nebraska has “an explicit,
well-defined, and dominant public policy” that “the laws of
Nebraska should be enforced without racial or religious dis-
crimination” and that the arbitrator’s decision reinstating the
officer violated this public policy because the policy “incor-
porates, and depends upon, the public’s reasonable perception
31
State v. Henderson, 277 Neb. 240, 762 N.W.2d 1 (2009).
32
Id. at 242, 762 N.W.2d at 3.
33
Id.
34
Id.
35
See §§ 25-2601 to 25-2622.
36
Henderson, supra note 31.
37
Id.
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that the laws are being enforced without discrimination.”38 The
dissent argued that the U.S. Supreme Court’s narrow public
policy exception did not bar judicial enforcement of the award
and that the majority was doing precisely what the Supreme
Court had prohibited in Paperworkers v. Misco, Inc.39: engag-
ing in factfinding, which is the arbitrator’s function, not the
appellate court’s.40
[16] Prior to 2008, a circuit split existed on whether courts
could apply nonstatutory standards when reviewing arbitra-
tion awards under the FAA. Many courts had been relying on
language in the 1953 case of Wilko v. Swan,41 which indicated
courts could vacate an award made in “manifest disregard” of
the law. In Hall Street Associates, L. L. C. v. Mattel, Inc.,42
the U.S. Supreme Court resolved the split and held that under
the FAA, courts lack authority to vacate or modify arbitration
awards on any grounds other than those specified in §§ 10 and
11 of the FAA.43 The Court was explicit that
[o]n application for an order confirming the arbitration
award, the court “must grant” the order “unless the award
is vacated, modified, or corrected as prescribed in sec-
tions 10 and 11 of this title.” There is nothing malleable
about “must grant,” which unequivocally tells courts to
38
Id. at 263, 762 N.W.2d at 16-17.
39
See Paperworkers v. Misco, Inc., 484 U.S. 29, 108 S. Ct. 364, 98 L. Ed.
2d 286 (1987).
40
Henderson, supra note 31 (Stephan J., dissenting). See, also, Misco, Inc.,
supra note 39, 484 U.S. at 44, 45 (criticizing federal Court of Appeals’
conclusion that machine operator had ever been or would be under
influence of marijuana while he was on job from fact that marijuana
was located in his car as “an exercise in factfinding” that “exceeds the
authority of a court asked to overturn an arbitration award”).
41
Wilko v. Swan, 346 U.S. 427, 436, 74 S. Ct. 182, 98 L. Ed 168 (1953).
42
Hall Street Associates, L. L. C., supra note 17.
43
See John M. Gradwohl, Arbitration: Interface of the Federal Arbitration
Act and Nebraska State Law, 43 Creighton L. Rev. 97 (2009).
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grant confirmation in all cases, except when one of the
“prescribed” exceptions applies.44
Pointedly, the Eighth Circuit Court of Appeals has explained
that prior to 2008, “a court could vacate arbitration awards
on grounds other than those listed in the FAA.”45 However,
“Hall Street, resolving a circuit split, held that ‘the text [of
the FAA] compels a reading of the §§ 10 and 11 categories as
exclusive.’”46
[17] Because the U.S. Supreme Court’s decision in Hall
Street Associates, L. L. C. abrogated public policy as grounds
for vacating an arbitration award under the FAA, we reject
the Arizona Seldins’ argument. We hold that under the FAA, a
court is not authorized to vacate an arbitration award based on
public policy grounds because public policy is not one of the
exclusive statutory grounds set forth in § 10 of the FAA. We
also clarify that Henderson was governed by the UAA–-not the
FAA–-and expressly disapprove of any language in Henderson
that could be construed as authorizing courts to vacate awards
on public policy grounds under the FAA.47
Because public policy is not a ground for vacating an arbi-
tration award under the FAA, we need not address the merits
of the Arizona Seldins’ argument that the purported windfall in
favor of the Omaha Seldins is contrary to public policy.
(c) Arbitrator’s Award of
Fees and Costs
In their third assignment of error, the Arizona Seldins argue
that the district court erred in confirming the arbitrator’s award
of attorney fees because the award exceeded the scope of the
separation agreement.
44
Hall Street Associates, L. L. C., supra note 17, 552 U.S. at 587 (quoting 9
U.S.C. § 9).
45
Medicine Shoppe Intern., supra note 25, 614 F.3d at 489.
46
Id.
47
Henderson, supra note 31.
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[18] Pursuant to § 10(a)(4) of the FAA, a court is authorized
to set aside an arbitration award where the arbitrator exceeded
his or her powers. However, “‘[i]t is not enough . . . to show
that the [arbitrator] committed an error—or even a serious
error.’”48 The analysis is “whether the arbitrator (even argu-
ably) interpreted the parties’ contract, not whether he got its
meaning right or wrong.”49 “Because the parties ‘bargained
for the arbitrator’s construction of their agreement,’ an arbitral
decision ‘even arguably construing or applying the contract’
must stand, regardless of a court’s view of its (de)merits.”50
In the final award, the arbitrator ordered the parties to pay
their own attorney fees, expenses, and costs arising from
the arbitration proceedings, “[e]xcept as specifically provided
in Supplemental Interim Award Claim 16,” which awarded
$1,001,051 in attorney fees and costs to the Omaha Seldins as
a partial measure of the damages caused by securities viola-
tions related to Sky Financial. The Arizona Seldins assert that
the award of attorney fees exceeded the scope of the separa-
tion agreement because the agreement expressly prohibited
such an award.
This assertion is based on a provision of the separation
agreement, which states:
In General: Except as otherwise provided in this
Agreement, each Party shall bear its own costs and
expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions con-
templated hereby. No party shall be required to pay to the
other Party any commissions, penalties, fees or expenses
arising out of or associated with any of the transactions
contemplated by this Agreement.
48
Oxford Health Plans LLC, supra note 21, 569 U.S. at 569 (quoting Stolt-
Nielsen S. A. v. AnimalFeeds Int’l. Corp., 559 U.S. 662, 130 S. Ct. 1758,
176 L. Ed. 2d 605 (2010)).
49
Oxford Health Plans LLC, supra note 21, 569 U.S. at 569.
50
Id., 569 U.S. at 569 (quoting Eastern Associated Coal Corp. v. Mine
Workers, 531 U.S. 57, 121 S. Ct. 462, 148 L. Ed. 2d 354 (2000)).
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In “Supplemental Interim Award Claim 16,” the arbitrator
interpreted the parties’ agreement regarding the award of fees
and costs and found that the agreement did not preclude an
award of fees and costs incurred in prosecuting the lost corpo-
rate opportunity and securities violations claims related to Sky
Financial. The arbitrator concluded that the agreement’s “trans-
actions contemplated” language referred to the transactions and
process contemplated by the parties in separating their joint
ownership interests in the jointly owned properties and entities
and not ancillary claims.
The arbitrator’s conclusion was based, in part, on the loca-
tion of the provision within the separation agreement, and
on another provision which stated: “Cooperation. The Parties
acknowledge and agree that the transactions contemplated by
this Agreement are intended to permit the Omaha Seldins, on
the one hand, and the Arizona Seldins, on the other hand, to
separate their joint ownership of the Properties.” In addition,
the arbitrator found that the rules of the AAA, which the par-
ties had incorporated into the separation agreement, authorized
the award of attorney fees and costs under circumstances such
as those presented here.
We hold that the arbitrator did not exceed his authority
under the separation agreement by issuing the award of fees
and costs. In the parties’ separation agreement, the parties each
agreed to resolve their disputes relating to severing their jointly
owned properties through final and binding arbitration. By
entering into the agreement, the parties bargained for the arbi-
trator’s construction of that agreement. The arbitrator construed
the agreement as permitting the award of attorney fees for the
parties’ ancillary claims. The Sky Financial claim was an ancil-
lary claim, and thus, the arbitrator did not exceed his authority
in awarding costs and fees related to that claim. The Arizona
Seldins’ third assignment of error is without merit.
(d) Sanctions Under § 25-824
In their fourth assignment of error, the Arizona Seldins
argue that the district court erred in awarding sanctions against
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them under § 25-824. Scott individually asserts on cross-
appeal that the district court abused its discretion in impos-
ing sanctions against Scott for filing the various applica-
tions in CI 16-7509, CI 16-8394, CI 17-506, CI 17-651, and
CI 17-3637 and in overruling his motion to alter or amend the
district court’s order.
Section 25-824(2) provides that
in any civil action commenced or appealed in any court
of record in this state, the court shall award as part of its
judgment and in addition to any other costs otherwise
assessed reasonable attorney’s fees and court costs against
any attorney or party who has brought or defended a civil
action that alleges a claim or defense which a court deter-
mines is frivolous or made in bad faith.
[19-21] We have stated that attorney fees shall be awarded
against a party who alleged a claim or defense that the court
determined was frivolous, interposed any part of the action
solely for delay or harassment, or unnecessarily expanded the
proceeding by other improper conduct.51 A frivolous action is
one in which a litigant asserts a legal position wholly without
merit; that is, the position is without rational argument based
on law and evidence to support the litigant’s position.52 The
term “frivolous” connotes an improper motive or legal posi-
tion so wholly without merit as to be ridiculous.53 Any doubt
about whether a legal position is frivolous or taken in bad faith
should be resolved in favor of the one whose legal position is
in question.54
In seeking to modify or vacate the final award, the Arizona
Seldins asserted four arguments. As previously summarized,
these arguments were that the arbitrator (1) engaged in mis-
behavior relating to the assignment of the Sky Financial
51
Moore v. Moore, 302 Neb. 588, 924 N.W.2d 314 (2019).
52
TFF, Inc. v. SID No. 59, 280 Neb. 767, 790 N.W.2d 427 (2010).
53
Id.
54
Id.
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property, (2) failed to provide a reasoned award on three
affirmative defenses raised by the Arizona Seldins related to
the Sky Financial claims, (3) exceeded his power in award-
ing legal fees and expenses to the Omaha Seldins, and (4)
materially miscalculated the prejudgment interest when award-
ing damages.
In its May 3, 2018, order, the district court entered judgment
in favor of the Omaha Seldins and against the Arizona Seldins
under § 25-824. When evaluating the Arizona Seldins’ claim
that the arbitrator engaged in misbehavior, the district court
noted that the Arizona Seldins appeared to have consented to
the assignment of Sky Financial, they had presented no evi-
dence demonstrating the arbitrator had improper motives when
accepting the assignment of Sky Financial, and their argument
“conflicts with the facts and the law.”
With regard to the argument that the arbitrator had failed to
provide a reasoned award in relation to the Arizona Seldins’
affirmative defense involving the claims bar date, the district
court found this argument lacked merit and “mischaracterize[d]”
the significance of the relation-back doctrine under Fed. R.
Civ. P. 15. In doing so, the district court called attention to
the arbitrator’s written findings and awards relating to the Sky
Financial claim, which consisted of 60 pages and contained
multiple paragraphs explaining the arbitrator’s reasoning when
rejecting the defense.
The district court also rejected the argument that the arbitra-
tor exceeded his power when awarding legal fees and expenses.
Recognizing that the cases cited by the Arizona Seldins when
asserting this argument either did not support their argument
or were not relevant, the district court found the arbitrator
had correctly interpreted and applied the separation agreement
when awarding the fees and costs.
The district court characterized the Arizona Seldins’ argu-
ment that the arbitrator had materially miscalculated the pre-
judgment interest as “misleading” and “fundamentally mis-
placed.” Noting that allegations of an arbitrator’s legal error
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are not reviewable, the district court found that the Arizona
Seldins had failed to identify any “‘mathematical error’” in the
arbitrator’s calculations. The court recognized that in making
this assertion, the Arizona Seldins were attempting to chal-
lenge the merits of the final award by arguing that the arbitra-
tor had committed legal error.
Addressing Scott’s individual claims, the district court found
there was no legal basis for Scott’s challenge of the interim
awards as the parties had agreed that the arbitrator’s interim
awards were nonfinal. Further, each of the 12 interim awards
included the following statement: “The parties understand this
Interim Award is not a final appealable arbitration award, but
it will be part of the law of the case moving forward.” Still,
Scott proceeded to file lawsuits seeking to modify, vacate,
and/or confirm five of these awards. In addition to finding the
interim applications frivolous, the district court found Scott’s
argument that he should not be held jointly and severally liable
to be “misleading.”
Reviewing the record and arguments in this case, we agree
with the district court in that “[w]hat should have been a fairly
simple procedure, [the Arizona Seldins] literally turned into a
re-litigation of the Arbitration itself.” The district court issued
the § 25-824 sanction after repeatedly finding the absence of
rational factual or legal bases to support the Arizona Seldins’
theories of modifying or vacating the final award. We hold that
the district court did not abuse its discretion in awarding attor-
ney fees and costs under § 25-824.
We also reject Scott’s claim that the district court abused
its discretion in overruling his motion to alter or amend the
district court’s order and judgment. Scott argues that his argu-
ments were not ridiculous and that the applications regarding
the interim awards “were filed only in an ‘abundance of cau-
tion’ and sought an ‘immediate stay’ to minimize any action by
the parties or the district court.”55
55
Brief for appellee Scott on cross-appeal at 34.
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In support of his argument, Scott first cites In re Chevron
U.S.A., Inc.,56 in which the Texas Court of Appeals held that an
arbitrator’s interim awards were sufficiently final for purposes
of confirmation and vacation. The district court specifically
rejected this argument in its February 28, 2019, order. The
district court noted that In re Chevron U.S.A., Inc. lacked evi-
dence demonstrating that the parties or arbitration panel had
agreed or intended the interim decision to be nonfinal and non-
appealable. The district court also recognized that the Arizona
Seldins had “not cited to a case where an interim award that
both the parties and the Arbitrator intended to be non-final was
treated as a final, appealable arbitration award.”
Scott also cites American Intl. Specialty Lines Ins. Co. v.
Allied Capital Corp.57 However, that case is clearly distin-
guishable from the facts presented here as the parties had
specifically requested that the arbitration panel make a final
determination on one of the issues.
We hold that the district court did not abuse its discretion in
finding Scott’s interim applications to be frivolous and order-
ing sanctions accordingly.
(e) Evidence of Omaha Seldins’ Claims
in Arizona State Court
In their fifth assignment of error, the Arizona Seldins argue
that the district court erred in excluding evidence of the Omaha
Seldins’ acting contrary to the separation agreement and the
award by currently seeking additional damages in other litiga-
tion for the same Sky Financial investment.
[22] This court has held that “‘[a]n appeal or error proceed-
ing, properly perfected, deprives the trial court of any power
to amend or modify the record as to matters of substance[.]’”58
56
In re Chevron U.S.A., Inc., 419 S.W.3d 329 (Tex. App. 2010).
57
American Intl. Specialty Lines Ins. Co. v. Allied Capital Corp., 167 A.D.3d
142, 86 N.Y.S.3d 472 (2018).
58
Samardick of Grand Island-Hastings, Inc. v. B.D.C. Corp., 183 Neb. 229,
231, 159 N.W.2d 310, 313 (1968).
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An appeal is taken by filing a notice of appeal and depositing the
required docket fee with the clerk of the district court.59
The Arizona Seldins filed their notice of appeal in these
cases on March 27, 2019. On July 5, the Arizona Seldins filed
a motion in the district court seeking to supplement the bill of
exceptions and/or to reopen the record. The Arizona Seldins
claimed that after the arbitration award had been confirmed,
the Omaha Seldins filed a complaint in an Arizona state court
alleging the same or similar claims regarding Sky Financial
that had been arbitrated in these cases. The Arizona Seldins
sought to supplement the record with evidence of the newly
filed Arizona cases for purposes of this appeal. The district
court overruled the motion on the ground that perfection of
an appeal deprives the trial court of any power to amend or
modify the record as to matters of substance.
We hold that the district court did not err when overruling
the motion to supplement the record. Because the Arizona
Seldins had perfected their appeal prior to the filing of the
motion, the district court did not have jurisdiction to supple-
ment the record with evidence of the Omaha Seldins’ purported
filings. The Arizona Seldins’ fifth assignment of error is with-
out merit.
(f) Description of “Respondents”
Scott individually asserts on cross-appeal that the district
court erred in failing to modify or correct an evident material
mistake in the description of “Respondents” in the final award
relating to Scott. Scott argues that the parties agreed Scott had
not personally violated any securities laws and, therefore, he
cannot be jointly and severally liable on the Sky Financial
award.
In the Arizona Seldins’ motion to modify or vacate the
arbitration award, Scott individually asserted that the arbitra-
tor had made a material mistake in the final award relating to
the description of “Respondents.” In its May 3, 2019, order
59
See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018).
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overruling the motion, the district court found the final award
had properly provided that Scott was jointly and severally
liable for all damages awarded. Classifying Scott’s argument
as misleading, the district court recognized that although the
parties agreed Scott had not violated any securities laws, he
usurped corporate opportunities relating to Sky Financial. The
district court also noted that Scott’s liability was not based
on common-law principles of joint and several liability, but
on his contractual liability as set forth in the parties’ separa-
tion agreement.
Scott attempts to invoke § 11(a) of the FAA, which permits
a court to modify or correct an award “[w]here there was an
evident material miscalculation of figures or an evident mate-
rial mistake in the description of any person, thing, or property
referred to in the award.”
[23,24] Under the FAA, “arbitration is a matter of contract,
and courts must enforce arbitration contracts according to their
terms.”60 “An evident material mistake is an error that is appar-
ent on the face of the record and would have been corrected
had the arbitrator known at the time.”61
In the present case, the definition of which individuals and
entities comprised each party was set forth in the separation
agreement and in the first case management order. Throughout
the arbitration proceedings, the individuals and entities com-
prising the Omaha Seldins and the Arizona Seldins agreed to
joint and several liability for any award entered against the
Omaha Seldins or the Arizona Seldins, respectively.
Scott entered into a binding agreement to arbitrate all claims
relating to the separation of the parties’ jointly owned proper-
ties, and he is included in the definition as one of the individ­
uals comprising the Arizona Seldins. Scott also agreed to
joint and several liability for all awards issued against the
60
Henry Schein v. Archer and White Sales, ___ U.S. ___, 139 S. Ct. 524,
529, 202 L. Ed. 2d 480 (2019) (citing Rent-A-Center, West, Inc. v. Jackson,
561 U.S. 63, 130 S. Ct. 2772, 177 L. Ed. 2d 403 (2010)).
61
94 Am. Jur. Trials 211, § 96 at 359 (2004).
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Arizona Seldins. According to the terms of the separation
agreement, Scott is jointly and severally liable for all awards
issued. We hold that the district court did not err in overruling
Scott’s motion.
(g) Claims Bar Date
Scott individually asserts that the district court erred in
failing to vacate the final award relating to the Sky Financial
claim because the claim was untimely and the arbitrator
exceeded his powers by permitting the Omaha Seldins to bring
the claim.
Again, §§ 10 and 11 of the FAA set forth the exclu-
sive grounds for vacating or modifying an arbitration award.62
“‘[S]o long as the arbitrator is even arguably construing or
applying the contract and acting within the scope of his author-
ity,’ the award should be confirmed.”63
The separation agreement contains a provision stating that
“reasonable amendments to Claims in pending actions shall
be allowed in the Mediator’s discretion based on discovery,
admissions, interim decision, and other developments in the
prosecution of the Claim, consistent with the Federal Rules of
Civil Procedure.” On December 3, 2013, the arbitrator granted
the Omaha Seldins leave to amend their claims on or before
December 6, “in the interests of justice and economy.”
Scott complains that the parties’ agreed-upon claims bar date
was July 2, 2012, and that the Omaha Seldins’ Sky Financial
claim was untimely because it was filed on November 14,
2014. Scott argues that the arbitrator exceeded his powers by
granting leave to amend because under Fed. R. Civ. P. 15, he
was required to apply the relation-back doctrine when assess-
ing the timeliness of the claim.
Rejecting this argument, the district court found that the arbi-
trator interpreted the separation agreement when concluding
62
See Hall Street Associates, L. L. C., supra note 17.
63
Beumer Corp. v. ProEnergy Services, LLC, 899 F.3d 564, 565 (8th Cir.
2018) (quoting Medicine Shoppe Intern., supra note 25).
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leave to amend should be granted and that the arbitrator’s deci-
sion was consistent with Fed. R. Civ. P. 15(a)(2). That section
provides that “[t]he court should freely give leave [to amend]
when justice so requires.”64 The district court also found that
this argument mischaracterized the significance of “relation
back” under Fed. R. Civ. P. 15 because the amended plead-
ing did relate back to a claim that had originally been filed on
October 9, 2011, prior to the parties’ claims bar date.
We hold that the district court did not err in rejecting this
claim. Scott does not argue that the arbitrator was not interpret-
ing the separation agreement; rather, he argues that the arbitra-
tor “was required to apply the ‘relation-back’ method of review
under the [Federal Rules of Civil Procedure], before allowing
the Sky Financial Claim to be brought after the Claims Bar
Date.”65 The record clearly demonstrates the arbitrator was
construing the separation agreement when he concluded that
leave should be granted. The arbitrator’s decision to grant the
leave is not grounds to vacate the award. This argument is
without merit.
4. Omaha Seldins’ Cross-Appeal
On cross-appeal, the Omaha Seldins argue they are enti-
tled to reasonable attorney fees and costs in the amount of
$342,860.95. Alternatively, the Omaha Seldins seek a determi-
nation that the district court erred in denying their motion for
order nunc pro tunc.
In determining the amount of a cost or attorney fee award
under § 25-824(2), Neb. Rev. Stat. § 25-824.01 (Reissue 2016)
states that “the court shall exercise its sound discretion.”
In its May 3, 2018, order, the district court entered judg-
ment in favor of the Omaha Seldins for an amount equal
to the attorney fees and costs incurred in resisting the
Arizona Seldins’ application seeking vacation or modifica-
tion of the final award and in seeking dismissal of the various
64
Fed. R. Civ. P. 15(a)(2).
65
Brief for appellee Scott on cross-appeal at 33.
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applications filed by Scott. After the judgment was issued,
the Omaha Seldins submitted evidence demonstrating that
it had incurred $342,860.95 in fees and costs: $211,676.50
by the Bryan Cave law firm and $131,184.45 by the McGill
law firm. However, when calculating the amount of fees to
be awarded, the district court neglected to include the Bryan
Cave law firm’s fees of $211,676.50. Although intending to
include the fees from both law firms, the district court’s order
included only the McGill law firm’s fees for a total amount
of $131,184.45.
The Omaha Seldins filed a motion for order nunc pro tunc,
seeking an order substituting $342,860.95 for the total amount
of fees incurred. In a written order, the district court stated that
it had “clearly intended to award attorney fees to Petitioners in
an amount, as stated in the Court’s Order of February 28, 2019,
equal to the attorney fees and costs incurred.” But the court
denied the motion after concluding that “[a]n Order Nunc Pro
Tunc [could not] be used to enlarge the judgment or substan-
tially amend[] the judgment even though said judgment was
not the order intended.”
Pursuant to the May 3, 2018, order, the Omaha Seldins are
entitled to their judgment for “an amount equal to the attor-
neys’ fees and costs [the Omaha Seldins] incurred in resisting
[the Arizona Seldins’] application seeking vacation or modifi-
cation of the Final Award and in seeking dismissal of the vari-
ous applications [filed by Scott].” The district court’s error in
calculating the amount of the award resulted in the Omaha
Seldins’ being unfairly deprived of their right to $211,676.50
in fees incurred by the Bryan Cave law firm. Thus, the district
court abused its discretion in determining the overall amount
of the award.
[25] Ordinarily, an improper calculation of attorney fees
would require a remand in order to reconfigure the award.66
However, when the record is sufficiently developed that a
66
Cedars Corp. v. Sun Valley Dev. Co., 253 Neb. 999, 573 N.W.2d 467
(1998).
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reviewing court can apply the law to the facts and calculate a
fair and reasonable fee without resorting to remand, that route
is available to the appellate court.67
Here, a remand is not required because the Omaha Seldins
presented evidence demonstrating the amount of fees incurred,
and we find these fees to be reasonable. Further, a remand
would serve only to needlessly prolong this litigation and
further undermine the finality of the arbitration award. We
conclude that the Omaha Seldins are entitled to a total fee
award of $342,860.95. Accordingly, we order the Arizona
Seldins to pay the Omaha Seldins an additional $211,676.50
for fees incurred by the Byran Cave law firm on behalf of the
Omaha Seldins.
[26] Because we order the payment of $211,676.50, we do
not reach or address the issue of whether the district court erred
in denying the Omaha Seldins’ motion for order nunc pro tunc.
An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy
before it.68
5. Arizona Seldins’ Motion
to Dismiss Cross-Appeal
The Arizona Seldins, along with Scott and Millard, filed
a joint motion to dismiss the Omaha Seldins’ cross-appeal
on the ground that the Omaha Seldins’ registration of the
district court’s judgment with an Arizona state court consti-
tuted a voluntary acceptance of the benefits of the judgment
and, thus, prevents the Omaha Seldins from prosecuting their
cross-appeal. The Omaha Seldins maintain that they have not
attempted to collect upon the judgment entered on February 28,
2019, and that the registration of the judgment was merely a
procedural act taken for purposes of collecting on the judgment
when collection was permitted.
67
Id.
68
Selma Development v. Great Western Bank, 285 Neb. 37, 825 N.W.2d 215
(2013).
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[27-29] Generally, under the acceptance of benefits rule, an
appellant may not voluntarily accept the benefits of part of a
judgment in the appellant’s favor and afterward prosecute an
appeal or error proceeding from the part that is against the
appellant.69 However, the rule does not apply when the appel-
lant has conceded to be entitled to the thing he or she has
accepted and where the appeal relates only to an additional
claim on his or her part.70 In asserting that the acceptance of
benefits rule precludes an appeal, the burden is on the party
asserting the rule to demonstrate that the benefits of the judg-
ment were accepted.71
Here, the Omaha Seldins agree with the judgment, except
for seeking an additional recovery of attorney fees that were
mistakenly omitted from the district court’s judgment. Further,
the Arizona Seldins have presented no evidence demonstrat-
ing the Omaha Seldins have accepted the benefits of the
judgment. We hold that the Omaha Seldins’ mere registration
of the judgment does not preclude their cross-appeal for the
recovery of additional fees and costs. This argument is with-
out merit.
VI. CONCLUSION
The FAA provides that a court must confirm an arbitra-
tion award unless grounds exist for vacating or modifying the
award under § 10 or § 11 of the FAA.72 Because neither the
Arizona Seldins nor Scott have demonstrated any such grounds
exist, the parties are bound by their agreement to arbitrate and
the arbitrator’s construction of that agreement.
We hold that the district court did not err in confirming
the arbitration award and denying the motions to vacate and/
or modify the award, nor did it err in denying the Arizona
69
Liming v. Liming, 272 Neb. 534, 723 N.W.2d 89 (2006).
70
Id.
71
See 5 Am. Jur. 2d Appellate Review § 543 (2018).
72
Hall Street Associates, L. L. C., supra note 17.
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Seldins’ motion to supplement the record. We further hold that
the district court did not abuse its discretion when awarding
attorney fees in favor of the Omaha Seldins or when deny-
ing Scott’s motion to alter or amend the court’s May 3, 2018,
order. We conclude that the Omaha Seldins’ registration of
the district court’s judgment does not preclude the Omaha
Seldins’ cross-appeal. Finally, we hold that the Omaha Seldins
are entitled to reasonable attorney fees and costs incurred in
confirming the arbitration award and resisting the various
applications filed by the Arizona Seldins and Scott and that the
district court abused its discretion when failing to include the
Bryan Cave law firm’s fees in its calculation of the amount of
fees to be awarded.
Accordingly, we (1) affirm the district court’s confirmation
of the arbitration award, (2) affirm the district court’s denial
of the Arizona Seldins’ and Scott’s motions to vacate and/or
modify the award, (3) affirm the district court’s denial of the
Arizona Seldins’ motion to supplement the record, (4) affirm
the district court’s award of sanctions under § 25-824, (5) over-
rule the Arizona Seldins’ motion to dismiss the Omaha Seldins’
cross-appeal, and (6) sustain the Omaha Seldins’ cross-appeal
and order the fee judgment in favor of the Omaha Seldins be
increased to $342,860.95.
Affirmed as modified.
Miller-Lerman, J., not participating.