Boyd v. Cook , 298 Neb. 819 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/06/2018 09:16 AM CDT
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
BOYD v. COOK
Cite as 298 Neb. 819
Scott T. Boyd, M.D., appellant, and
Great Plains Diagnostics, LLC, appellee,
v. John Cook, M.D., et al., appellees.
___ N.W.2d ___
Filed February 2, 2018. No. S-17-177.
1. Jurisdiction: Appeal and Error. When a jurisdictional question does
not involve a factual dispute, determination of a jurisdictional issue is
a matter of law which requires an appellate court to reach a conclusion
independent from the trial court’s.
2. Actions: Arbitration and Award: Appeal and Error. While a court’s
decision to issue a stay in an action is generally reviewed under an
abuse of discretion standard of review, the decision whether to stay
proceedings and compel arbitration is a question of law that an appellate
court reviews de novo.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
4. Jurisdiction: Legislature: Appeal and Error. In order for an appellate
court to have jurisdiction over an appeal, appellate jurisdiction must be
specifically provided by the Legislature.
5. Judgments: Final Orders: Words and Phrases. A final judgment is
one that disposes of the case either by dismissing it before hearing is
had upon the merits, or after trial by rendition of judgment for the plain-
tiff or defendant.
6. Judgments: Words and Phrases. Every direction of a court or judge,
made or entered in writing and not included in a judgment, is an order.
7. Final Orders: Appeal and Error. The only three types of final orders
which may be reviewed on appeal are (1) an order which affects a sub-
stantial right and which determines the action and prevents a judgment,
(2) an order affecting a substantial right made during a special proceed-
ing, and (3) an order affecting a substantial right made on summary
application in an action after judgment is rendered.
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BOYD v. COOK
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8. Final Orders. Under Neb. Rev. Stat. § 25-1315 (Reissue 2016), an
order that adjudicates fewer than all the claims or the rights and liabili-
ties of fewer than all the parties is not final and is subject to revision at
any time before the entry of judgment adjudicating all the claims and the
rights and liabilities of all the parties.
9. Dismissal and Nonsuit: Final Orders. Generally, an order of dismissal
is a final, appealable order.
10. Actions: Appeal and Error. An order issuing a stay within an action is
generally not appealable.
11. Actions: Dismissal and Nonsuit: Final Orders. A stay that is tanta-
mount to a dismissal of an action or has the effect of a permanent denial
of the requested relief is a final order.
12. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the
power of a tribunal to hear and determine a case in the general class or
category to which the proceedings in question belong and to deal with
the general subject matter involved.
13. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a
judicial tribunal by either acquiescence or consent, nor may subject mat-
ter jurisdiction be created by waiver, estoppel, consent, or conduct of
the parties.
14. ____. A lack of subject matter jurisdiction may be raised at any time by
any party or by the court sua sponte.
15. ____. Just as parties may not confer subject matter jurisdiction on a
court by consent, neither may parties deprive a court of subject matter
jurisdiction by their own agreement.
16. Arbitration and Award: Contracts: Venue. Arbitration provisions
are properly understood as contractual agreements between parties to
resolve their disputes in an arbitral venue.
17. Arbitration and Award: Contracts: Parties. A contractual arbitration
provision creates a contractual right which may be enforced only by a
party to the contract.
18. Arbitration and Award: Contracts: Waiver. Like other contractual
rights, an agreement to arbitrate can be waived by the parties.
19. Arbitration and Award: Contracts. Arbitration provisions are not
self-executing.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Reversed and remanded for further
proceedings.
Steven A. Klenda and Geoffrey N. Blue, of Klenda, Gessler
& Blue, L.L.C., and Robert W. Futhey and Mark Laughlin, of
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BOYD v. COOK
Cite as 298 Neb. 819
Fraser Stryker, P.C., L.L.O., for appellant and appellee Great
Plains Diagnostics, LLC.
James J. Frost, of McGrath, North, Mullin & Kratz, P.C.,
L.L.O., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Cassel, J.
I. INTRODUCTION
Nearly 3 years into litigation between two doctors and vari-
ous associated business entities, the district court determined
that because of arbitration and venue provisions in an employ-
ment contract, it lacked jurisdiction. The court indefinitely
stayed a claim for dissolution of one entity and dismissed
all other claims. This appeal followed. Because the arbitra-
tion provision, which neither party sought to enforce, did not
deprive the court of jurisdiction, we reverse, and remand for
further proceedings.
II. BACKGROUND
John Cook, M.D., owned Midwest Pain Clinic, P.C. (Midwest
Pain). In early 2012, Midwest Pain employed Scott T. Boyd,
M.D., as an anesthesiologist. Midwest Pain and Boyd detailed
the terms of Boyd’s employment in a written contract.
The employment contract contained a jurisdiction and venue
provision: “Except as set forth in [an arbitration provision],
the [c]ourt located in Union County, South Dakota, shall
have jurisdiction and be the venue of all disputes between
[Midwest Pain] and [Boyd], whether such disputes arise from
this [a]greement or otherwise.” And it contained an arbitration
provision stating that “any dispute or controversy arising out
of the interpretation or operation” of the contract “shall be
resolved by arbitration” as set forth in the agreement.
Based on Boyd’s experience operating a urinalysis labora-
tory, Boyd, Cook, and Cook’s son, Jacob Cook (Jacob), formed
Great Plains Diagnostics, LLC (Great Plains), in early 2013.
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BOYD v. COOK
Cite as 298 Neb. 819
Great Plains was a urinalysis laboratory that operated in a
building owned by an associated entity and in which Midwest
Pain and another associated entity also operated. Boyd was the
majority owner and manager of Great Plains, while Jacob was
its executive director. Jacob was also the office manager of
Midwest Pain.
Disputes arose regarding access to documents and billing
data, billing procedures, and billing codes assigned to services
provided. In October 2013, Jacob resigned his positions at both
Midwest Pain and Great Plains to take another job out of state.
That same month, offers regarding a partnership and a draft
separation agreement were refused.
Things apparently came to a head in early January 2014. On
January 10, Boyd’s employment with Midwest Pain was termi-
nated and he was locked out of Great Plains’ offices.
In April 2014, Cook and Jacob sued to dissolve Great Plains.
They sought dissolution, the appointment of a receiver to wind
up Great Plains’ business, and an order enjoining Boyd from
disposing of any of Great Plains’ assets.
Additional claims, styled as counterclaims, followed. Boyd
and Great Plains eventually asserted 10 different claims against
Cook, Jacob, Midwest Pain, and other associated entities.
Midwest Pain asserted a counterclaim against Boyd, and it
made a separate counterclaim with another entity against
Great Plains.
Cook, Jacob, Midwest Pain, and two other entities moved
for summary judgment on 7 of the 10 claims made by Boyd
and Great Plains, which motion, in February 2016, the district
court overruled in part and sustained in part. The court granted
summary judgment on four of the claims by Boyd and Great
Plains and on two other claims as to Boyd, but not as to Great
Plains. And the court denied summary judgment on one of
the claims.
In January 2017, the district court dismissed sua sponte all
of the claims in the case other than the dissolution proceeding
as to Great Plains. The court noted that Boyd’s employment
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BOYD v. COOK
Cite as 298 Neb. 819
contract with Midwest Pain contained an arbitration provision
and a provision that jurisdiction and venue for all disputes
between Boyd and Midwest Pain are proper in Union County,
South Dakota. The court concluded that it lacked jurisdic-
tion over the causes of action in the case, excluding the Great
Plains dissolution proceeding, and dismissed those claims.
It stayed the dissolution proceeding pending the outcome of
arbitration. Boyd moved the court to reconsider its dismissal,
which motion the court overruled.
Boyd appealed the district court’s order of dismissal and its
prior order sustaining in part the motion for summary judg-
ment. We moved the appeal to our docket.
III. ASSIGNMENTS OF ERROR
Boyd’s assignments of error, restated, are that the district
court erred by (1) dismissing the case for lack of jurisdic-
tion, (2) granting summary judgment on his claim under the
Nebraska Wage Payment and Collection Act, and (3) granting
summary judgment on his fraudulent inducement claim. Cook
and others take no position on the district court’s sua sponte
dismissal, but argue that this court lacks appellate jurisdic-
tion to review the latter two assignments of error relating to
the district court’s partial grant of summary judgment. In the
alternative, they argue that the district court correctly granted
summary judgment on the claims from which Boyd appeals.
IV. STANDARD OF REVIEW
[1] When a jurisdictional question does not involve a factual
dispute, determination of a jurisdictional issue is a matter of
law which requires an appellate court to reach a conclusion
independent from the trial court’s.1
[2] While a court’s decision to issue a stay in an action is
generally reviewed under an abuse of discretion standard of
1
Hand Cut Steaks Acquisitions v. Lone Star Steakhouse, ante p. 705, ___
N.W.2d ___ (2018).
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review,2 the decision whether to stay proceedings and compel
arbitration is a question of law that an appellate court reviews
de novo.3
V. ANALYSIS
1. Jurisdiction
[3] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.4 To determine whether
we have appellate jurisdiction to review the district court’s
order of dismissal or its prior summary judgment order, we
first recall principles of Nebraska law governing appellate
jurisdiction.
(a) Nebraska Appellate
Jurisdiction
[4] Under the Nebraska Constitution, this court has only
“such appellate jurisdiction as may be provided by law.”5 That
is to say, “in order for this court to have jurisdiction over an
appeal, appellate jurisdiction must be specifically provided by
the Legislature.”6
[5,6] The Legislature has provided that appellate courts have
jurisdiction to review the judgments and final orders of the
district courts.7 And the Legislature has defined a “­judgment”
2
See, Sullivan v. Storz, 156 Neb. 177, 55 N.W.2d 499 (1952). See, also,
Lamb v. Dist. Ct. of Fourth Judicial Dist., 356 Mont. 534, 234 P.3d 893
(2010); In re Application for Water Rights of U.S., 101 P.3d 1072 (Colo.
2004).
3
See Good Samaritan Coffee Co. v. LaRue Distributing, 275 Neb. 674, 748
N.W.2d 367 (2008).
4
Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 147
(2017).
5
Neb. Const. art. V, § 2. Accord Heckman v. Marchio, 296 Neb. 458, 894
N.W.2d 296 (2017).
6
Heckman v. Marchio, supra note 5, 296 Neb. at 460, 894 N.W.2d at 299.
7
Neb. Rev. Stat. § 25-1911 (Reissue 2016).
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as “the final determination of the rights of the parties in an
action.”8 A final judgment is one that disposes of the case
either by dismissing it before hearing is had upon the merits, or
after trial by rendition of judgment for the plaintiff or defend­
ant.9 Conversely, every direction of a court or judge, made or
entered in writing and not included in a judgment, is an order.10
[7] “Final orders” are also defined by statute:
An order affecting a substantial right in an action,
when such order in effect determines the action and pre-
vents a judgment, and an order affecting a substantial
right made in a special proceeding, or upon a summary
application in an action after judgment, is a final order
which may be vacated, modified or reversed, as provided
in this chapter.11
Thus, the only three types of final orders which may be
reviewed on appeal are (1) an order which affects a substantial
right and which determines the action and prevents a judg-
ment, (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.12
Also, Neb. Rev. Stat. § 25-1315 (Reissue 2016) provides
that when a case involves multiple claims or multiple parties, a
party may generally only appeal when all claims and the rights
of all parties have been resolved. If a court issues an order that
is final as to some, but not all, of the claims or parties, such an
order is appealable “only upon an express determination that
there is no just reason for delay and upon an express direction
for the entry of judgment.”13 In the absence of such an entry
8
Neb. Rev. Stat. § 25-1301(1) (Reissue 2016).
9
In re Adoption of Madysen S. et al., 293 Neb. 646, 879 N.W.2d 34 (2016).
10
Id.
11
Neb. Rev. Stat. § 25-1902 (Reissue 2016).
12
See State v. Combs, 297 Neb. 422, 900 N.W.2d 473 (2017).
13
§ 25-1315(1).
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of judgment, orders adjudicating fewer than all claims or the
rights of fewer than all the parties are not final and are “sub-
ject to revision at any time before the entry of judgment adju-
dicating all the claims and the rights and liabilities of all the
parties.”14 Thus, absent an entry of judgment under § 25-1315,
no appeal will lie unless all claims have been disposed as to all
parties in the case.15
(b) Finality of District
Court’s Dismissal
[8] As an initial matter, our appellate review in this case
encompasses only the district court’s dismissal and stay order
and not its prior summary judgment order. As we read the
court’s dismissal order, it dismissed all nondissolution claims,
including those claims on which it previously granted sum-
mary judgment. Under § 25-1315(1), an order that “adjudi-
cates fewer than all the claims or the rights and liabilities
of fewer than all the parties” is not final and “is subject to
revision at any time before the entry of judgment adjudicat-
ing all the claims and the rights and liabilities of all the par-
ties.” Because the district court’s prior summary judgment
order granted summary judgment on only some of the claims
and left other claims to be resolved at trial, the order did not
adjudicate all of the claims in the case and was thus “subject
to revision at any time.”16 In light of the provisional nature of
the prior summary judgment order, we understand the district
court’s order dismissing “all matters, not to include the judicial
dissolution of Great Plains,” to include those claims on which
the court previously granted summary judgment. The dis-
trict court’s dismissal of those claims for lack of jurisdiction
14
Id.
15
See Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007).
See, generally, Castellar Partners v. AMP Limited, 291 Neb. 163, 864
N.W.2d 391 (2015) (discussing § 25-1315).
16
See § 25-1315(1).
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effectively vacated its prior summary judgment order. As a
result, our review in this appeal is limited to the court’s dis-
missal and stay order.
Before reviewing the appealability of the dismissal order
under the general final order statute, we first note that the
order is not made appealable by the provisions of Nebraska’s
Uniform Arbitration Act. Neb. Rev. Stat. § 25-2620 (Reissue
2016) authorizes appellate jurisdiction to review certain
­arbitration-related orders, such as an order denying an applica-
tion to compel arbitration or an order granting an application
to stay arbitration. But this section does not address whether a
party may appeal an order granting an application to compel
arbitration or to stay judicial proceedings.17 Appellate jurisdic-
tion to review an order compelling arbitration and staying the
action is determined by looking to the general final order stat-
ute, § 25-1902.18 Here, the district court’s order, which stayed
the dissolution proceeding pending the outcome of arbitration
and dismissed all other claims, does not fall within the limited
scope of § 25-2620.
Neither is the order here reviewable as a judgment. The dis-
trict court’s order was not a “final determination of the rights
of the parties in an action”19 because it did not determine all
of the parties’ rights. The order left the dissolution proceed-
ing unresolved, staying that claim pending the outcome of
arbitration.20
[9] It necessarily follows that we have jurisdiction to review
the court’s dismissal order only if it constitutes a final order.
Had the district court’s order simply dismissed all claims, it
would unquestionably be a final order. Generally, an order of
17
Kremer v. Rural Community Ins. Co., 280 Neb. 591, 788 N.W.2d 538
(2010).
18
Id.
19
§ 25-1301(1). See, also, Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb.
943, 880 N.W.2d 906 (2016).
20
See Cattle Nat. Bank & Trust Co. v. Watson, supra note 19.
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dismissal is a final, appealable order.21 But the district court’s
order dismissed all claims except the Great Plains dissolution
proceeding, which it stayed pending arbitration.
Thus, whether we have jurisdiction turns on whether the
order staying the dissolution proceeding is a final order. If the
stay is not a final order, then the district court’s order under
§ 25-1315 would be one that “adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties”
and would therefore not be final. If the stay is a final order,
then the dismissal and stay order does not fall within § 25-1315
and we have appellate jurisdiction to review it.
[10,11] An order issuing a stay within an action is gener-
ally not appealable.22 But we have held that a stay that is
“tantamount to a dismissal of an action or has the effect of a
permanent denial of the requested relief” is a final order.23 In
Kremer v. Rural Community Ins. Co.,24 we concluded that a
court order under Nebraska’s Uniform Arbitration Act staying
an action has the same effect as a dismissal because “[t]he par-
ties cannot litigate their dispute in state courts.” Though the
order at issue here is distinct from the one in Kremer, we reach
the same conclusion.
In Kremer, the trial court, on the defendant’s motion, com-
pelled arbitration and stayed the case. Here, the court’s order
was issued sua sponte and did not compel arbitration, but dis-
missed most claims because of the arbitration provision and
stayed the remaining claim, for dissolution of Great Plains,
pending the result of arbitration. The order staying the dis-
solution proceeding was tantamount to a dismissal of that
21
Bargmann v. State, 257 Neb. 766, 600 N.W.2d 797 (1999) (decided before
enactment of § 25-1315); Robinson v. NABCO, Inc., 10 Neb. Ct. App. 968,
641 N.W.2d 401 (2002); Janet K. v. Kevin B., 5 Neb. Ct. App. 169, 556
N.W.2d 270 (1996).
22
Kremer v. Rural Community Ins. Co., supra note 17.
23
Id. at 600, 788 N.W.2d at 548.
24
Id. at 600-01, 788 N.W.2d at 548.
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claim, because it stayed that claim for an indefinite period
of time and conditioned the lifting of the stay on the parties’
arbitrating their other claims. It was thus similar to the order
in Kremer in that it put the parties out of court and effectively
forced them to arbitrate their claims. We conclude that the
order staying the Great Plains dissolution proceeding was a
final order.
Because both the stay of the dissolution proceeding and the
dismissal of all other claims were final, the order staying and
dismissing claims disposed of all claims as to all parties within
the meaning of § 25-1315. We have jurisdiction to review the
district court’s order.
2. District Court’s Dismissal
and Stay Order
Boyd argues that the district court erred by dismissing the
nondissolution claims and staying the dissolution proceeding,
while the appellees take no position on the correctness of the
court’s order. Boyd argues that the employment contract’s arbi-
tration provision had been waived by the parties by extensively
litigating the claims subject to the provision and that the venue
and jurisdiction provision did not deprive the district court of
subject matter jurisdiction. We agree that the district court’s
dismissal and stay order was erroneous.
[12-14] When the district court concluded that it lacked
jurisdiction, it did not specify whether it was referring to
personal or subject matter jurisdiction. But the court appeared
to be referring to the latter. Subject matter jurisdiction is the
power of a tribunal to hear and determine a case in the gen-
eral class or category to which the proceedings in question
belong and to deal with the general subject matter involved.25
American courts long ago adopted the “‘no-waiver, no-­
consent’ rule” for subject matter jurisdiction from the English
25
J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893
(2017).
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common law.26 As we have frequently stated, parties cannot
confer subject matter jurisdiction upon a judicial tribunal by
either acquiescence or consent, nor may subject matter juris-
diction be created by waiver, estoppel, consent, or conduct of
the parties.27 And a lack of subject matter jurisdiction may be
raised at any time by any party or by the court sua sponte.28
[15] Just as parties may not confer subject matter jurisdic-
tion on a court by consent, neither may parties deprive a court
of subject matter jurisdiction by their own agreement.29 A
court’s subject matter jurisdiction derives from the constitu-
tional and statutory sources of its authority, not the agreement
of the litigants that appear before it.30
[16] The district court erred in concluding that the arbitra-
tion and jurisdiction and venue provisions of the employment
agreement deprived it of subject matter jurisdiction. As a
basic principle of law, a contractual agreement can do no such
thing.31 While some older case law inaptly referred to arbitra-
tion agreements as “oust[ing the] courts of jurisdiction,”32
such provisions are properly understood as contractual agree-
ments between parties to resolve their disputes in an arbitral
26
Larry L. Teply & Ralph U. Whitten, Civil Procedure 44 (5th ed. 2013)
(emphasis omitted).
27
J.S. v. Grand Island Public Schools, supra note 25.
28
Id.
29
State, etc. v. University of Wisconsin-Madison, 96 Wis. 2d 492, 292
N.W.2d 657 (Wis. App. 1980). See, J.S. v. Grand Island Public Schools,
supra note 25; Shaffer v. Jeffery, 915 P.2d 910 (Okla. 1996).
30
Dial 800 v. Fesbinder, 118 Cal. App. 4th 32, 12 Cal. Rptr. 3d 711 (2004)
(as modified). See, generally, J.S. v. Grand Island Public Schools, supra
note 25 (subject matter jurisdiction).
31
See, Dial 800 v. Fesbinder, supra note 30; State, etc. v. University of
Wisconsin-Madison, supra note 29.
32
See, e.g., Dowd v. First Omaha Sec. Corp., 242 Neb. 347, 353, 495
N.W.2d 36, 40 (1993). But see Park Construction Co. v. Independent
School Dist. No. 32, 209 Minn. 182, 296 N.W. 475 (1941).
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venue.33 This court has recognized that “[a]rbitration is purely
a matter of contract.”34 And while an arbitration provision,
like a forum selection provision, may create an enforceable
right to resolve disputes between the parties to the contract
in another forum, such provisions do not bear on the subject
matter jurisdiction of the court.35 As the Supreme Court of
Oklahoma explained, “[t]he contractual right to compel arbi-
tration [is] a defense to an action on the contract,” but “[t]he
affirmative defense of an agreement to arbitrate is not the
same thing as lack of subject matter jurisdiction.”36 An order
compelling arbitration made pursuant to Nebraska’s Uniform
Arbitration Act37 or the Federal Arbitration Act38 may deprive
a court of jurisdiction to adjudicate the claims subject to
arbitration, but it is the arbitration order and the underlying
statute, not the arbitration agreement itself, that deprive the
court of jurisdiction.39
And the employment contract here does not even purport to
deprive the court of subject matter jurisdiction. The arbitra-
tion clause provides that disputes between Boyd and Midwest
Pain are to be resolved by arbitration. And the jurisdiction
33
See, In re Nestorovski Estate, 283 Mich. App. 177, 769 N.W.2d 720
(2009); Catrini v. Erickson, 113 Conn. App. 195, 966 A.2d 275 (2009);
Park Construction Co. v. Independent School Dist. No. 32, supra note 32.
34
Cornhusker Internat. Trucks v. Thomas Built Buses, 263 Neb. 10, 13, 637
N.W.2d 876, 880 (2002).
35
Catrini v. Erickson, supra note 33. See, Big City Small World Bakery
Cafe, LLC v. Francis David Corporation, 265 F. Supp. 3d 750 (2017);
Grasty v. Colorado Technical University, 599 F. Appx. 596 (7th Cir. 2015)
(memorandum opinion). See, also, Scherk v. Alberto-Culver Co., 417 U.S.
506, 94 S. Ct. 2449, 41 L. Ed. 2d 270 (1974).
36
Shaffer v. Jeffery, supra note 29, 915 P.2d at 913.
37
Neb. Rev. Stat. §§ 25-2601 to 25-2622 (Reissue 2016).
38
9 U.S.C. §§ 1 to 16 (2012).
39
Kremer v. Rural Community Ins. Co., supra note 17. See Ruff v. Splice,
Inc., 398 Ill. App. 3d 431, 923 N.E.2d 1250, 338 Ill. Dec. 101 (2010).
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and venue provision states that “the [c]ourt located in Union
County, South Dakota, shall have jurisdiction and be the
venue of all disputes between [Midwest Pain] and [Boyd],
whether such disputes arise from this [a]greement or oth-
erwise.” If the reference to jurisdiction in this latter provi-
sion were somehow read to refer to subject matter—rather
than personal—jurisdiction, such a provision would have no
legal effect.
[17-19] Finally, from the premise that a contractual arbitra-
tion provision merely creates a contractual right, it necessarily
follows that this right may be enforced only by a party to the
contract.40 Here, neither party sought to enforce the arbitra-
tion provision, yet the court dismissed or stayed all claims in
the case in an attempt to push the dispute into arbitration. But
like other contractual rights, an agreement to arbitrate can be
waived by the parties.41 Arbitration provisions are not self-
executing.42 It is improper for a court to try to enforce such a
contractual right on behalf of the parties.43 We need not decide
whether the extensive litigation that has occurred in this case
constitutes a waiver of the arbitration agreement because nei-
ther party sought to enforce the arbitration agreement in the
first place. Waiver of a contractual provision is a defense to
enforcement of that provision, but a party must first seek to
invoke the provision before it is necessary to consider the
40
Yang v. Majestic Blue Fisheries, LLC, 876 F.3d 996 (9th Cir. 2017) (only
party to arbitration agreement may enforce agreement).
41
Good Samaritan Coffee Co. v. LaRue Distributing, supra note 3.
42
Dial 800 v. Fesbinder, supra note 30. See, also, Good Samaritan Coffee
Co. v. LaRue Distributing, supra note 3.
43
See Yang v. Majestic Blue Fisheries, LLC, supra note 40. Cf., Sarpy
Cty. Farm Bureau v. Learning Community, 283 Neb. 212, 808 N.W.2d
598 (2012) (courts should generally not decide issues not raised by
parties); Good Samaritan Coffee Co. v. LaRue Distributing, supra note 3
(arbitration waiver).
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affirmative defense of waiver.44 Because no party has sought to
enforce the arbitration agreement, it was error for the district
court to do so on its own accord.
VI. CONCLUSION
For the reasons set forth above, we reverse the stay and
dismissal order and remand the cause for further proceedings.
R eversed and remanded for
further proceedings.
Wright, J., not participating.
44
See, Omaha Police Union Local 101 v. City of Omaha, 292 Neb. 381,
872 N.W.2d 765 (2015) (waiver generally); Good Samaritan Coffee Co. v.
LaRue Distributing, supra note 3. See, also, Dial 800 v. Fesbinder, supra
note 30.